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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
HBJ No. 10 of 2021
IN THE MATTER of ss. 112 and 116 inter alia of the Constitution of the Republic of Fiji (Constitution)
A N D
IN THE MATTER of the suspension and subsequent termination of the appointment of the Applicant as Solicitor-General
BETWEEN :
SHARVADA NAND SHARMA, legal practitioner, of 9 Tagimoucia Place, Laucala Beach Estate, Nasinu
APPLICANT
AND :
THE PRESIDENT OF THE REPUBLIC OF FIJI, of Government House, Suva
FIRST RESPONDENT
AND :
THE JUDICIAL SERVICES COMMISSION, of Government Buildings, Suva
SECOND RESPONDENT
THE ATTORNEY-GENERAL OF FIJI, Attorney-General’s Chambers, Suvavou House, Suva
THIRD RESPONDENT
Counsel:
Applicant: J. Apted
Respondents: D. Sharma and Ms. Fatima G
JUDGMENT
Facts
(m) Applicant had denied the contents and or allegations without specifically replying to the said thirty one queries.
(n) Second Respondent had advised the first Respondent that there was sufficient evidence to consider misbehaviour of Applicant. (again no such evidence was provided except a complaint by SOE and denial of that by Applicant).
(o) Applicant’s conduct ‘when considered in it’s entirely was tantamount to cumulative misbehaviour as the Applicant failed to respond, despite being encouraged to, to the correspondence pub to him by the Second Respondent.’
(p) Applicant was terminated by first Respondent on the advice of second Respondent.
(q) Applicant was paid his dues comprising of his outstanding annual leave, in accordance with the provisions of the Employment Relations Act 2007.
Analysis
10. Applicant has sufficient interest in the matter before court as he is directly affected by the removal from his position and seeking judicial review of the said decision. This judgment deals with whether the leave should be granted to the Applicant pursuant to Order 53 rule 3(1) of High Court Rules 1988(HCR).
11. In the written submissions filed on behalf of the Respondents following facts were admitted,
(a) Applicant had filed relevant documents in terms of Order 53 rule 2 of HCR.
(b) Applicant has sufficient interest in the matter.
(c) Applicant was suspended without salary on 20.9.2021.
(d) Applicant was terminated from his position on 10.11.2021
12. Apart from the above it is not disputed:
(a) Applicant was suspended from his position on 20.9.2021 without salary.
(b) Second Respondent had not submitted any decision it had taken to suspend Applicant without salary.
13. In Inland Revenue Commission v National Federation of Self Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617 643 –644 held, (Per Lord Diplock)
“The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into matter at any depth at that stage. If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration, turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him, leave to apply for that relief. The discretion that the court is exercising at this stage is not the same as that which is it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.”
14. In this application Applicant is not only seeking to review the final decision that terminated him from his post but also five additional decisions relating to the same process of termination taken before he his termination.
15. In Fiji Airline Pilots Association v Permanent Secretary for Labour and Industrial Relations (Civil Appeal No. ABU59u of 1997s, 27 .2. 1998), the Court of Appeal, held,
“The basic principle is that the Judge is only required to be satisfied that the material available discloses what might, on further consideration, turn out to be an arguable case in favour of granting the relief. If it does, he or she should grant the application - per Lord Diplock in Inland Revenue Commissioners v National Federation of Self Employed, [1981] UKHL 2; [1982] AC 617 at 644..”
16. Supreme Court in Matalulu v Director of Public Prosecutions [2003] FLR 129, (at pages 144-145) held that
“It is not an occasion for a trial of issues in the proposed proceedings. That having been said, the judge considering the grant of leave is entitled to have regard to a variety of factors relevant to the purpose of the rule, these include:
(1) Whether the proposed application is frivolous or vexatious or an abuse of the process of the court.
(2) Whether the application discloses arguable grounds for review based upon facts supported by affidavit.
(3) Whether the application would serve any useful purpose, e.g. whether the question has become moot.
(4) Whether there is an obvious alternative remedy such as administrative review or appeal on the merits which has not been exhausted by the applicant.
(5) Whether a restrictive approach to the grant of leave is warranted because the decision is one which is amenable to only limited judicial review.”
Further held,
“But where a proposed application for judicial review depends upon grounds involving assertions of law or fact which are manifestly untenable, then leave should not be granted.”(emphasis added)
17. Accordingly the factors to be taken in to consideration at the stage of leave seeking judicial review cannot be precisely stated but, the guiding principle is that leave should be refused when there is no prospect of success at the hearing such as untenable legal argument on the face of it and it would be waste of time and resources to grant leave for judicial review.
18. At this point it is worth to consider grounds of objects to this application and Respondents opposed this application on following grounds:
Application is out of time and or there has been inordinate delay (Grounds i.and ii.)
19. This application relates to six decisions and the oldest decision out of six decisions, (which is the First Decision) taken on 20.9.2021 to suspend Applicant which was communicated by first Respondent to the Applicant. This Application was filed on 16.12.2021. This was despite Applicant’s warning to the second Respondent to restore his salary during pendency of his suspension before 1.10.2021.
20. Order 53 rule 4(2) of the High Court Rules 1988, stipulate a time-limit of three months for the relief of certiorari, ‘to remove judgment, order, conviction or other proceeding, for the purpose of quashing’.
21. Accordingly, this application was made within the said time period, hence the objection of delay to refuse leave is without merit, but this delay is relevant to the request for stay of the decisions under review which is dealt later.
22. Without prejudice to above, said objection relating to time, is not determinative at the stage of seeking leave, unless the court exercises its discretion to refuse. When an application is not filed within the stipulated time period discretion grated to the court in terms of Order 53 rule 4(1) of HCR so the delay is not determinative of the application.
23. Time period of three months is not mandatory in terms of Order 53 rule 4(1) of High Court Rules 1988, where court is granted discretion to consider such delay, to refuse an application for certiorari, considering inter alia, good administration, hardship or prejudice to third parties act.
24. As stated earlier, these considerations has no application when the application is filed within three months. In this case Applicant had filed seeking leave This is to prevent decisions being challenged, long after they were taken and quashing would affect ‘substantial hardships’ or ‘prejudicially affect rights’ of any person or when it is ‘detrimental to good administration’. I do not need to consider these factors in this application as this was filed within three months’ time period, but need to consider in an application filed outside three months’ time period to grant or refuse extension.
25. This was held in Supreme Court, in Public Service Commission v Singh (Supreme Court of Fiji, Civil Appeal No. CBV0011 of 2008, 27 .8. 2010) no issue of delay arises where an application seeking the relief for certiorari within three months. The Supreme Court said at paragraphs 6-7 –
“However, we think that both Courts were wrong on the second point, namely, whether the trial Judge could go on and consider delay when the application was filed within the 3 months period.
The starting point is the relevant rule itself. A close reading of Order 53 Rule 4(1) shows that two situations were envisaged by the provision:
(a) Where there is delay in making an application for judicial review. The court may refuse to grant the relief sought in the application if it thinks that granting it would be likely to cause substantial hardship to, or substantially prejudice the rights of any person or would be detrimental to good administration.
(b) Where there is an application for leave to issue judicial review where the relief sought is an order for certiorari, and the application is made after the 3 months has expired, in such case, the trial judge is allowed to consider whether there was delay and whether the grant of relief is justified. The rule does not allow him to consider delay if the application was filed within the 3 months period. It is the result of an application of the rule of statutory interpretation expressio unius est exclusio alterius.”
Justifiability -The decision is not susceptible to judicial review – alternative remedies were available.
26. The said contention is based on the premise that relief sought is a private law remedy as opposed to public law. This is based on the fact that Applicant’s employment was terminated, hence an employment grievance under Employment Relations Act 2007 (ERA).
27. Respondents also contend that receipt of payment for his unused leave under ERA is a reason to deny judicial review. This argument is without merit as payment of statutory dues and recovery of them is a separate issue from justiciability under judicial review.
28. Respondents argue that Applicant should have applied to the Employment Relations Court for compliance orders under section 221 and 220(i) of ERA. The Respondents further contend, that the ERA allows anyone to bring an action that is “founded on an employment contract”.
29. Applicant is appointed to the position of solicitor general in terms of Section 116 of the Constitution.
30. Section 116 of the Constitution states.
“(1) the office of the Solicitor-General established by the State Services Decree 2009 continues in existence.
(2) The Solicitor-General is responsible for—
(a) providing independent legal advice to Government and to the holder of a public office, on request;
(b) preparing draft laws on the request of Cabinet;
(c) maintaining a publicly accessible register of all written law;
(d) representing the State in court in any legal proceedings to which the State is a party, other than criminal proceedings; and
(e) performing any other functions assigned by this Constitution, any written law, Cabinet or the Attorney-General.
(3) The Solicitor-General, with the permission of the court, may appear as a friend of the court in any civil proceedings to which the State is not a party.
(4) The Solicitor-General must be a person who is qualified to be appointed as a Judge.
(5) The Solicitor-General shall be appointed by the President on the recommendation of the Judicial Services Commission following consultation by the Judicial Services Commission with the Attorney-General.
(6) The President may, on the recommendation of the Judicial Services Commission following consultation by it with the Attorney-General, appoint a person to act as the Solicitor-General during any period or during all periods, when the office of the Solicitor-General is vacant or when the Solicitor-General is absent from duty or from Fiji or is, for any reason, unable to perform the functions of office.
(7) The Solicitor-General has the same status as that of a permanent secretary and shall be responsible as the Permanent Secretary for the Office of the Attorney-General and may be assigned such additional responsibilities as permanent secretary.
(8) The Solicitor-General shall have the same term of office as a Judge of the High Court, and shall be paid such remuneration as determined by the Judicial Services Commission in consultation with the Attorney-General, provided however that such remuneration shall not be less than that payable to a Judge of the High Court or a permanent secretary and any such remuneration must not be varied to his or her disadvantage, except as part of an overall austerity reduction similarly applicable to all officers of the State.
(9) The Solicitor-General may be removed from office for inability to perform the functions of his or her office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour, and may not otherwise be removed.
(10) The procedure for removal of the Solicitor-General from office shall be the same as the procedure for removal of a judicial officer under section 112” (emphasis is added)
31. Applicant is appointed on recommendation of second Respondent, with consultation of third Respondent for ‘all periods’. Once appointed protection of the post is secured constitutionally. This is to secure independence and impartiality required for the post.
32. Removal of Solicitor General is stated in the Constitution, hence cannot be varied contractually. The interpretation of the Constitution is required for determination of legality of the termination which is secured in the Constitution.
33. The Constitution had secured the position of Solicitor General, in the same manner it had secured the tenure of ‘judicial officer’. These are constitutional provisions that needs to be interpreted sui generis. This is different from interpretation of statute. So ERA cannot be applied to interpret constitutional provisions.
34. So in terms of Section 116(10) of the Constitution removal of Applicant from his office, is the same procedure for removal of ‘judicial officer’ under Section 112 of the Constitution. This is to give adequate protection to the office of Applicant. Even if there was a contract of employment the protection given in the Constitution cannot be removed or varied in order to remove the protection granted by the Constitution. So it is mandatory to follow the process stipulated in the Constitution, when a complaint against Applicant was dealt.
35. Section 112 of the Constitution States,
“(1) A Judge, Magistrate, Master of the High Court, the Chief Registrar or any other judicial officer appointed by the Judicial Services Commission may be removed from office for inability to perform the functions of his or her office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour, and may not otherwise be removed.
(2) Removal of a Judge, Magistrate, Master of the High Court, the Chief Registrar or any other judicial officer appointed by the Judicial Services Commission from office must be by the President pursuant to this section.
(3) If the President, acting on the advice of the Judicial Services Commission, considers that the question of removing a Judge, Magistrate, Master of the High Court, the Chief Registrar or any other judicial officer appointed by the Judicial Services Commission from office ought to be investigated, then –
(a) the President, acting on the advice of the Judicial Services Commission, shall appoint –
(i) in the case of alleged misbehaviour—a tribunal, consisting of a chairperson and not less than 2 other members, selected from amongst persons who hold or have held high judicial office in Fiji or in another country; and
(ii) in the case of alleged inability to perform the functions of office - a medical board, consisting of a chairperson and 2 other members, each of whom is a qualified medical practitioner;
(b) the tribunal or medical board enquires into the matter and furnishes a written report of the facts to the President and advises the President of its recommendation whether or not the Judge, Magistrate, Master of the High Court, the Chief Registrar or any other judicial officer appointed by the Judicial Services Commission should be removed from office; and
(c) in deciding whether or not to remove a Judge, the President must act on the advice of the tribunal or medical board, as the case may be.
(4) The President may, acting on the advice of the Judicial Services Commission, suspend the Judge, Magistrate, Master of the High Court, the Chief Registrar or any other judicial officer appointed by the Judicial Services Commission from office pending investigation and pending referral to and appointment of a tribunal or a medical board under subsection (3), and may at any time, revoke the suspension.
(5) The suspension of the Judge, Magistrate, Master of the High Court, the Chief Registrar or any other judicial officer appointed by the Judicial Services Commission from office under subsection (4) ceases to have effect if the President determines that the Judge, Magistrate, Master of the High Court, the Chief Registrar or any other judicial officer appointed by the Judicial Services Commission should not be removed from office.
(6) The report of the tribunal or the recommendations of the medical board, as the case may be, made under subsection (3) shall be made public.
(7) This section does not apply to the Chief Justice or the President of the Court of Appeal.”(emphasis is added)
36. In terms of Section 112(4) of the Constitution Applicant was suspended from his post, pending investigation by a Tribunal, before removal.
37. From the above, Removal of Applicant is prescribed in the Constitution and application of constitutional provision can be interpreted in judicial review application as opposed to a civil remedy or through and ‘employment grievance’ in terms of ERA
38. In P.P.Palani v Fiji Electricity Authority (unreported) ABU0028 of 1996 Court of Appeal said (at pages 8, 10) –
“Lyons J., in our view correctly, commenced by saying that judicial review did not lie in a strict master and servant relationship. In our view the law is now clear that judicial review is only available where an issue or public law is involved in master and servant cases; it does not apply where the issue is a private law obligation. It is not always easy to determine just what is comprehended by expressions of “public law” and “private law” in this area. However, since they first became commonly used judgment of the Courts have developed our understanding of what is meant. In R. V. BBC. Ex parte Lavelle (1983)1 All E.R. 241 Woolf J at 248 said when dealing with an application for judicial review had extended the circumstances in which the prerogative remedies of mandamus, prohibition or certiorari were available.
In R. v. East Berkshire Health Authority, ex parte Walsh [1984] EWCA Civ 6; (1984) 3 All E.R. 425 it was held by the Court of Appeal that whether a dismissal from employment by a public authority was subject to public law remedies depended on whether there were special statutory restrictions on dismissal which underpinned the employee’s position and not on the fact of employment by a public authority per se or the employee’s seniority or the interests of the public in the functioning of the authority. Sir John Donaldson M.R. in his judgment discussed the question of statutory underpinning in relation to three of the most well-known cases in this area, Vine v. National Dock Labour Board (1956) 3 All E.R. 939, Ridge v. Baldwin [1963] UKHL 2; (1963) 2 All E.R. 66 and Malloch v. Aberdeen Corp (1971) 2 All E.R. 1278, and said at p. 430:
“In all three cases there was a special statutory provision bearing directly on the right of a public authority to dismiss the plaintiff. In Vine’s case the employment was under the statutory dock labour scheme and the issue concerned the statutory power to dismissal was conferred by statute (s. 191(4) of the Municipal Corporations Act 1882). In Malloch’s case again it was statutory (s.3 of the Public Schools (Scotland) Teachers Act 1882). As Lord Wilberforce said, it is the existence of these statutory provisions which injects the element of public law necessary in this context to attract the remedies of administrative law. Employment by a public authority does not per se inject any element of public law. Nor does the fact that the employee is in a ‘higher grade’ or is an ‘officer’. This only makes it more likely that there will be special statutory restrictions on dismissal or other underpinning and not the seniority which injects the element of public law. Still less can I find any warrant for equating public law with the interest of the public. If the public through Parliament gives effect to that interest by means of statutory provisions, that is quite different, but the interest of the public per se is not sufficient.
In R v Civil Service Appeal Board, ex parte Bruce (1988) 3 All E.R. 686 May L.J said at p 691:
“The first issue in this case, therefore is whether the board’s decision on the applicant’s appeal against his dismissal is capable of challenge in this court by means of judicial review. This will only be if there was a public or administrative element in the board’s jurisdiction to hear and decide such an appeal, in other words, whether an issue of public law was involved. The test is relatively simple to state, but by no means easy to apply. As Sir John Donaldson MR said in R V Panel on Takeovers and Mergers exp Datafin plc [1986] EWCA Civ 8; (1987) 1 All ER 564 at 577,(1987) QB 815 at 838:
‘In all the reports it is possible to find enumerations of factors giving rise to the jurisdiction, but it is a fatal error to regard the presence of all of those factors as essential or as being exclusive of other factors. Possibly the only essential elements are what can be described as a public element, which can take many different forms...’ (emphasis is added)
39. Applicant had no contract of employment, and his removal can only be done in accordance with the Constitution. So removal of Applicant can only be dealt in judicial review. Even if he had a contract of employment, that does not preclude judicial review if he was removed in contrary to the provisions contained in the Constitution.
40. By contract the conditions relating to employment can be negotiated but removal can only be in terms of the Constitutional safeguards provided.
41. It is clear that there are constitutional provisions that required interpretation and application in this matter, and this cannot be done under ERA.
42. Proceedings under ERA cannot challenge all the six decisions, which are sought to be reviewed in Judicial Review application. So, ERA is not an alternate remedy for this application.
Application of Constitution
43. Section 82 of the Constitution makes clear that under the Constitution, the President of Fiji acts only in accordance with advice and state,
“President acts on advice
In the exercise of his or her powers and executive authority, the President acts only on the advice of Cabinet or a Minister or of some other body or authority prescribed by this Constitution for a particular purpose as the body or authority on whose advice the President acts in that case.”(emphasis added)
44. Accordingly , the President can only act , on the ‘advice the body on whose advice the President acts’, and in this instance Judicial Services Commission(second Respondent), but the absence of a decision by said body to suspend without the salary makes first respondent a party affected by this application.
45. Section 104(8) of the Constitution states,
“(8) In the performance of its functions or the exercise of its authority and powers, the Commission is independent and not subject to the direction or control of any person or authority, except by a court of law or as otherwise prescribed by written law.”(emphasis added)
46. The President must comply with Section 112 of the Constitution when removing a judicial officer or the Solicitor-General. If not the removal can be subjected to judicial review.
47. This Application requires this Court to consider and apply various provisions of the Constitution. The Constitution contains a number of provisions about how it is to be applied and interpreted.
48. Section 1 sets out the values on which the Fijian State is founded. It provides –
“The Republic of Fiji
(a) common and equal citizenry and national unity;
(b) respect for human rights, freedom and the rule of law;
(c) an independent, impartial, competent and accessible system of justice;
(d) equality for all and care for the less fortunate based on the values inherent in this section and in the Bill of Rights contained in Chapter 2;
(e) human dignity, respect for the individual, personal integrity and responsibility, civic involvement and mutual support;
(f) good governance, including the limitation and separation of powers;
(g) transparency and accountability; and
(h) a prudent, efficient and sustainable relationship with nature.”
49. Section 2, the Supremacy clause, says –
“Supremacy of the Constitution
2.–(1) This Constitution is the supreme law of the State.
(2) Subject to the provisions of this Constitution, any law inconsistent with this Constitution is invalid to the extent of the inconsistency.
(3) This Constitution shall be upheld and respected by all Fijians and the State, including all persons holding public office, and the obligations imposed by this Constitution must be fulfilled.
(4) This Constitution shall be enforced through the courts, to ensure that –
(a) laws and conduct are consistent with this Constitution;
(b) rights and freedoms are protected; and
(c) duties under this Constitution are performed.
(5) ....”
50. Section 3(1), which sets out the interpretation, so far as relevant states –
“Principles of constitutional interpretation
3.–(1) Any person interpreting or applying this Constitution must promote the spirit, purpose and objects of this Constitution as a whole, and the values that underlie a democratic society based on human dignity, equality and freedom.”
51. Section 6, which applies to enforcement of the Bill of Rights, so far as relevant provides –
“6.–(1) This Chapter binds the legislative, executive and judicial branches of government at all levels, and every person performing the functions of any public office.
(2) The State and every person holding public office must respect, protect, promote and fulfil the rights and freedoms recognised in this Chapter.
(7) Subject to the provisions of this Constitution, laws made, and administrative and judicial actions taken, after the commencement of this Constitution, are subject to the provisions of this Chapter.”
“But the actual or possible absence of a contract is not decisive against Dr Roy. He has in my opinion a bundle of rights which should be regarded as his individual private law rights against the committee, arising from the statute and regulations and including the very important private law right to be paid for the work that he has done.”
Disputed Facts
‘The third general issue is whether, if your Lordships accept the view that the duty of the courts is not limited to inquiring whether there was evidence on which the immigration officer was entitled to decide as he did, the House should now depart from the train of decisions culminating in Zamir to the contrary effect. Any such departure from precedent requires careful consideration because of the undesirability of disturbing settled rules. But in the present case I am clearly of opinion that the decision in Zamir, to which I was a party, was erroneous in stating that the function of the court was only to see whether there were reasonable grounds for the decision of the immigration officer.’(emphasis added).
60. According to the Respondent the complaint made by Supervisor of Elections and letter from second Respondent and failure to provide ‘ any proper response to the allegations’ cannot be resolved by the court.
61. In a judicial review application court is not going to resolve such allegations and or complaints, but can review decisions taken in violation of procedural requirements, reasonableness or ultra vires. There is no need to consider facts contained in the said complaints or replies provided in order to review the six decision stated in this application.
62. It is not in dispute that –
(a) Second Respondent advised the President to suspend the Applicant
(b) the President acted on the said advise to suspend the Applicant by letter dated 20.9.2021( SS 2 to Affidavit in support)
(c) The President suspended the Applicant without pay pending an ‘appointment of a Tribunal as provided for under section 112 of the Constitution of the Republic of Fiji.’
(d) Applicant through his solicitors wrote to second Respondent on 27.9.2021 requesting full salary during the suspension pending inquiry said tribunal.( Annexed marked SS 3 to the affidavit in support)
(e) On 1 .10. 2021, the second Respondent refused the Applicant’s request to advise the President restore the Applicant’s pay during suspension (Applicant’s Supporting Affidavit, SS-4);
(f) Second Respondent’s letter to the Applicant on 4.11.2021, enclosing a complaint by the Supervisor of Elections and required the Applicant’s to respond to 31 questions set out in that letter.
(g) The response to be provided by, 06.11.2021(Applicant’s Supporting Affidavit, Annexed SS-6);
(h) Applicant through his solicitors requested on 5.11. 2021 for extension of time period to eight days, giving reasons for such a request. (Applicant’s Supporting Affidavit, Annexed SS-7);
(i) 5.11. 2021, the above request was declined. (Applicant’s Supporting Affidavit, Annexed SS-8);
(j) 6.11. 2021, the Applicant while denying all the allegations, again sought a reasonable time to be able to provide his response. (Applicant’s Supporting Affidavit, Annexed SS-9).
(k) On 10.11. 2021, the Applicant was served with a letter signed by the President, which removed the Applicant from office (Applicant’s Supporting Affidavit, paragraph 35 and Annexure SS-10.
‘In August 1982 an incident occurred at Wexham Park Hospital involving a patient, Mr Walsh and Miss Cooper, the district nursing officer. The details and the merits of the dispute are a matter of controversy, but happily are irrelevant for present purposes. Suffice it is to say that on or about 25 August 1982 Miss Cooper suspended Mr Walsh from duty.’
“7 (1) On an application for judicial review the Court may, subject to paragraph (2), award damages to the applicant if—
(a) he or she has included in the statement in support of his or her application for leave under Rule 3 a claim for damages arising from any matter to which the application relates; and
(b) The Court is satisfied that, if the claim had been made in an action begun by the applicant at the time of making his or her application, he or she could have been awarded damages.
(2) Order 18, Rule 12, shall apply to a statement relating to a claim for damages as it applies to a pleading.”
“Order 53, Rule 7 says that damages can be awarded so long as the Court is satisfied that, ‘if the claim had been made in an action begun by the application at the time of making his application, he could have been awarded damages’. The framing of the Rule leads to a view that where loss of job or demotion are in issue, it is proper in considering the question of damages to have regard to unfair or unlawful dismissal, and breach of employment contract cases.
...
However, what needs to be affirmed in the present case, consistent with The Permanent Secretary for the Public Service Commission and Anor v. Epeli Lagiloa, is that having succeeded in his application for certiorari, Mr Prasad succeeds also in his claim for recovery of wages and entitlements. This is because it need not be pleaded as special damages. Rather, the decision having been quashed, Mr Prasad is in a position of having been effectively employed by the First Respondent from the time of the purported dismissal (or suspension as the Respondents say), and hence is entitled to pay.
...
The Court can make an award of general damages to cover the humiliation and loss of face confronted by Mr Prasad in the termination of his employment, particularly taking into account his lengthy period of service with the Respondents. This is, in my view, exacerbated by the matters to which Counsel refers in the Written Submissions, namely the matters set out in the substantive judgment as to the way in which the Respondents approached the decision-making process and its effect upon Mr Prasad.”
“22. Mr Boolell raises as an initial objection to any award, whether of salary or damages, that any such claim should be pursued in separate civil proceedings, in the light of any judgment given by the Board. He referred to D. Hurnam v. The State of Mauritius 2003 SCJ 54 Record No. 606, where the Supreme Court took a restrictive view of the claims for compensation that could appropriately be pursued under s.17 of the Constitution, which provides for redress in respect of contraventions of ss.3 to 16 of the Constitution. The present case concerns an application for judicial review based on Chapter VIII of the Constitution. Mr Boolell cited no authority which restricts the scope of relief that may appropriately be granted in this context. Their Lordships consider that it would be unfortunate if, following a successful application for judicial review, a court were unable to award arrears of salary or give consequential redress that was otherwise appropriate, but had to remit the matter to be decided in separate civil proceedings before another court. A court dealing with a judicial review application can either assess the appropriate award itself or can, if factual or other issues require further evidence or argument, order a trial of such issues separately, giving such directions as may be appropriate for the further conduct of the proceedings.” (emphasis added)
74. So the request of damages is not a reason to deny judicial review, as court may grant or refuse such a request.
75. Having dealt the preliminary issues the six decisions are dealt below.
Decision to Suspend (First Decision)
(a) When the decision to suspend was taken by second Respondent.
(b) Whether suspension was with or without the salary.
(c) When was the advice not to pay the salary conveyed to the first Respondent.
Decision of First Respondent on 20.9.2021(second Decision)
(a) First, if the first Decision to suspend was unlawful, the suspension without pay decision also unlawful
(b) Second, if the suspension without pay was not taken by second Respondent, first Respondent could not suspend salary without a decision from second Respondent. Neither first Respondent nor second Respondent filed letter advising suspension without pay.
(m) Thirdly, section 112(4) of the Constitution, does not allow for the Applicant’s suspension from the position without pay.
(n) The Respondents referred to section 137(4) of the Constitution which allows the President, to exercise discretion regarding terms of suspension but this applies to, suspension of the independent public officers referred to in section 134 of the Constitution and has no application to Applicant.
(o) fourthly, section 116(8) of the Constitution (which is identical to section 113(1) of the Constitution) expressly states that remuneration payable to the Applicant must not be varied to his disadvantage, except as part of an overall austerity reduction applicable to all officer of the State. The removal of the Applicant’s pay was a fundamental variation in remuneration and in breach of section 116(8);
(p) Fifthly, suspension without pay invariably results in financial hardship, and as such, the Applicant should have been given an opportunity to be heard on the complaint and any proposed suspension before the Applicant was suspended. The Applicant was denied fairness and natural justice, as enshrined in section 16 of the Constitution and as firmly established in administrative law;
(q) Sixthly, suspension without pay creates serious financial implications which has the effect of punishing the person suspended who has not been provided with an opportunity to be heard on the complaint made against that person. This is disproportionate and contrary to fundamental principle of innocence;
(r) Seventhly, the decision was contrary to general procedure of second Respondent, hence acted unreasonably.
Refusal to restore salary pending investigation by a Tribunal conveyed on 1.10.2021(Third Decision)
Decision conveyed on 4.11.2021, to seek response within two days (Forth Decision)
Advice of second Respondent to terminate Applicant (Fifth Decision)
“Having received the advice of the Commission and having considered the complaint, I find that you failed to discharge your responsibilities under Section 116(2) of the Fijian Constitution in respect of the matters laid out in the complaint. Further, your conduct, including that which is referred to in paragraph 4 herein, when considered in its entirely, is tantamount to cumulative misbehaviour.’(Emphasis added)
Termination by first Respondent (sixth decision)
Is President a necessary party?
114. In their submissions, the Respondents argued that that the First Respondent, should be removed as a party to the Application. Neither First Respondent nor second Respondent provided any letter advising suspension of Applicant without salary.
115. Applicant argues that there was no decision of second Respondent to advise first Respondent prior to letter of suspension dated 20.9.2021 issued by first Respondent.
116. Apart from that Applicant had raised issues as to content of letter of termination dated 10.11.2021 where first Respondent had stated he had terminated Applicant
‘Having considered the complaint, I find that you failed to discharge your responsibilities under Section 116(2) of the Fijian Constitution in respect of the matters laid out in the complaint. Further, your conduct including that which is referred to in paragraph 4 herein, when considered in its entirety, is tantamount to cumulative misbehaviour’
CONCLUSION
Applicant has shown that it has an arguable case with respect to all six Decisions which are dealt previously. First Respondent on 20.9.2021 had suspended Applicant. He had also informed that suspension was without out salary ‘pending the appointment of a Tribunal as provided under Section 112 of the Constitution of the Republic of Fiji’. Section 112(3) of the Constitution grants discretion to appoint a Tribunal to investigate any complaint, and Applicant was informed on 20.9.2021 that his suspension was pending an appointment of such Tribunal. This was not appointed. Apart from that there is lack of evidence as to advice received regarding non-payment of the salary during suspension. Applicant was granted only two days on 4.11.2021, to reply to more than thirty one specific questions regarding the complaint of SOE to Chairman of second Respondent dated 14.9.2021. SOE’s complaint was not given to Applicant before 4.11.2021 and any complaint to any other body or person regarding same incident is not a reason to deny reasonable time period to reply considering importance of such a reply that can affect Applicant’s rights. So he is entitled to time period that would allow him to access to legal advice and material required to reply adequately. As established in Inland Revenue Commission v National Federation of Self Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617, Fiji Airline Pilots Association v Permanent Secretary for Labour and Industrial Relations (Civil Appeal No. ABU59u of 1997s, 27 February 1998), and Matalulu v Director of Public Prosecutions [2003] FLR 129 the Applicant only needs to establish an arguable case at this stage and this threshold was met regarding all six decisions.
Applicant is granted leave to apply for judicial review regarding six decisions which were discussed in this decision. Application for stay is refused considering circumstances and nature of the case. Applicant was suspended from his position on 20.9.2021 but this application seeking judicial review was filed on 16.12.2021. So, this is also a factor taken in to consideration of refusal to consider grant of leave to act as stay of the said decisions.
Final Orders
.....................................
Justice Deepthi Amaratunga
Judge High Court, Suva
Dated at Suva this 26th day of January 2023.
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