State v Public Service Commission, ex parte Pal [1998] FJLawRp 40; [1998] 44 FLR 196 (21 August 1998)

[1998] 44 FLR 196

HIGH COURT OF FIJI

Revisional Jurisdiction

THE STATE

v

PUBLIC SERVICE COMMISSION

ex parte

SAT. NARAYAN.PAL

Fatiaki J

21 August 1998

Public Service - disciplinary proceedings – interdiction - requirement that proportion of salary to be paid during period of interdiction be properly assessed. Public Service (Constitution) Regulations, Regn 42(3).

The Applicant was dismissed from the Public Service at the conclusion of disciplinary proceedings against him. He sought judicial review. The High Court rejected the submissions that the Applicant had been unfairly dismissed and that the Applicant had a right to be heard before the decision to interdict him was taken: but HELD: (1) that the Public Service Commission has no power to backdate a dismissal from the service and (2) that following a decision to interdict the Commission must properly assess in all the circumstances the amount of salary to be paid during the period of interdiction. The High Court deplored the length of time which the PSC took to conclude the disciplinary proceedings.

Cases cited:

Birss v. Secretary for Justice [1984] NZCA 24; [1984] 1 NZLR 513
Divendra Bijay v. P.S. for Education Women and Culture & Anr HBJ0005/97S

J.K.L. Maharaj for the Applicant
S. Kumar for the Respondent

Fatiaki J:

The applicant was a former Inspector of Weights and Measures who was charged on 8th May 1995 with twelve disciplinary offences under The Public Service Commission (Constitution) Regulations 1990 (the PSC (Constitution) Regulations) for alleged breaches of the National and Trade Measurement Decree 1989 during the course of performing his official duties thereunder.

Pursuant to Regulation 40(2) the charging officer, the Permanent Secretary for Commerce, Trade and Public Enterprises, (the PS) sought the applicant's written pleas and any explanation that he felt appropriate to make in the circumstances.

By an eight page memorandum dated 11th May 1995 the applicant responded in some detail to each of the charges and allegations that had been labelled against him.

By letter dated 17th May 1995 the PSC interdicted the applicant without salary under the provisions of Regulation 42(1)(a) of the PSC (Constitution) Regulations. Thereafter a Disciplinary Tribunal was appointed pursuant to Regulation 44 to hear the evidence and find the facts. When the appointment was made by PSC is not disclosed in any of the affidavits but correspondence suggests that no appointment was made until well after 21st October 1996 i.e. 5 months after interdiction.

Indeed, it was not until the 25th January 1996 that the Chairman of the Disciplinary Tribunal wrote to the applicant calling on him and his legal advisor (if any) to attend a pre-trial meeting on 12th-13th February to agree the guidelines and procedures to be followed in the actual hearing.

Thereafter the three-man Disciplinary Tribunal sat for several days in March 1997 and heard the sworn evidence of no less than 16 witnesses which included the applicant, and received into evidence thirty 35 real and documentary exhibits including the applicant's caution interview record.

The applicant who was present throughout was represented by Mr. Q.B. Bale of counsel, who, at the end of the proceedings, presented a lengthy written submission which concluded by thanking the Tribunal and the Department for the opportunity to be heard fairly at the inquiry.

By letter dated 26th June 1996, the Public Service Commission (PSC) advised the applicant of his dismissal from the service with effect from 17.5.95 pursuant to Regulation 51(1)(a). No complaint has been raised as to the back-dating of the dismissal but I have some reservations as to the vires of such a retrospective order.

Be that as it may, on 26th September 1996 the applicant sought leave to issue judicial review against PSC's decision and this was granted after State Counsel indicated that he was not opposing the grant of leave. On 4th November 1996 the applicant's substantive motion for judicial review was filed.

The Statement filed in support of the application lists in paragraph 4, no less than nine grounds upon which the applicant's dismissal is challenged, including one which states that the PSC acted unfairly (in failing) to disclose to the applicant the report of the Disciplinary Tribunal for consideration, comments or submissions prior to reaching its decision to dismiss the applicant from the service.

This ground is not supported in the applicant's primary affidavit and, in so far as a request appears to have been made to the Disciplinary Tribunal, it is wholly misconceived and unmeritorious. That this is so, is clear from Regulations 48(1) & (2) which provides:

"The disciplinary tribunal should make a report to the Commission and the report shall contain its findings of facts and an expression of opinion as to the meaning and value of the facts found."

and especially, subregulation 48(2), which reads:

"The disciplinary tribunal shall not disclose the contents of the report made under Subregulation (1) to the officer charged or any officer not authorised by the Commission to receive such report."

The clarity and meaning of the above prohibition is further reinforced by subregulation 48 (3) which renders any unauthorised disclosure of the disciplinary tribunal's report, an act of misconduct. Quite plainly in the absence of PSC's authorisation, the Disciplinary Tribunal's refusal of the applicant's request for a copy of its report was both justified and inevitable.

The remaining eight grounds include almost every known heading under which judicial review may be granted and. with the change of the applicant's Counsel and in the absence of particulars, were ordered to be appropriately amended and/or particularised. This order generated an even more confusing four page narrative document entitled: "Amplification of the grounds of Relief".

Notwithstanding that and bearing in mind counsel’s submissions, I am able to distil the following three grounds:

(1) That the decision to interdict the applicant without salary was ultra vires the powers of PSC;

(2) That the Disciplinary Tribunal was not impartial; and

(3) The dismissal of the applicant was unduly harsh in all the circumstances;

As to (1): Counsel's argument is that Regulation 42(3) of the PSC (Constitution) Regulations 1990 only empowers the PSC to determine what proportion of salary the interdicted officer shall receive upon interdiction and not that he will receive no salary at all. This is said to be the plain meaning of the subregulation which assumes that salary is payable so long as an officer remains in employment and is not dismissed.

State Counsel for his part submits, also relying on Regulation 42 (3), that the PSC has power to determine if any, the proportion of salary, rights, privileges to be paid to the applicant during his interdiction.

Regulation 42, which covers interdiction, provides in sub-regulation 1:

"Where there have been instituted against an officer:

(a) disciplinary proceedings in respect of a major offence; or

(b) criminal proceedings,

and where the Commission is of the opinion that the public interest requires that that officer should forthwith cease to perform the functions of his office, the Commission shall interdict him from such performance."

More relevantly for present purposes, sub-regulation 3 provides:

"An officer so interdicted shall, subject to regulation 55, be permitted to receive such proportion of salary, and such rights and privileges attached to his appointment if any, as the Commission may determine."

Clearly PSC is expressly given power to interdict an officer pending the disposal of disciplinary or criminal proceedings instituted against him if the public interest requires it, and, during such period of interdiction to permit him to receive such proportion of salary as the Commission may determine.

It is common ground that in this case the applicant was neither warned nor were his views sought on the question of his interdiction without salary.

In Divendra Bijay v. Permanent Secretary for Education Women and Culture and Attorney General Judicial Review No. 5 of 1997, Pathik J. in granting leave to apply for judicial review in that case of a school teacher who had been interdicted without salary the day after disciplinary charges had been laid against him, and relying on the judgment of the New Zealand Court of Appeal in Birss v. Secretary for Justice [1984] NZCA 24; [1984] 1 NZLR 513, observed at p. l2:

"... on the authority of Birss, in appropriate cases, rules of natural justice and fairness prima facie applied to suspension from office without salary. In fact, in my view the principles involved on the issue before me is to be found in this case. ... in the light of Birss, it appears that an opportunity for hearing must be given when contemplating interdiction without pay in appropriate cases ..."

and later at p. 15 Pathik J. said:

"... it seems that in the absence of any clear expression in Regulation 42, the rules of natural justice and fairness apply to interdiction ... without salary."

If I may say so the wording of the relevant regulation in the Birss case (ibid at p.515) is stronger than that contained in Regulation 42(3) above, in so far as, there is a clear prohibition against an officer receiving salary during the period of his interdiction, unless the Commission directs otherwise.

I accept that in the Birss case the officer remained in active employment for some 19 months after disciplinary charges were laid against him and before his suspension but, notwithstanding that, in my opinion, unless the exigencies of the case precludes it, the principles of natural justice apply whenever an officer is to be interdicted without salary.

After all, as Richardson J. said in the Birss case (ibid at p.521):

"Suspension is a drastic measure which if more than momentary, must have a devastating effect on the officer concerned. The prejudice occasioned the officer by a suspension can never be assuaged even if he is ultimately vindicated at the disciplinary hearing and is then restored to office and paid his arrears of salary."

A fortiori where suspension is without salary thereby depriving the officer of his normal and often in this country, only means of financial support. In the applicant's case not only was he unilaterally interdicted without salary, but, to make matters worse, his case was not finally disposed of until 13 months after he had been interdicted and during the whole of which time he would have received no salary. That is neither just nor reasonable.

If I may say so a large part of the appalling delay in this case must be attributed to PSC which has the primary duty of ensuring that disciplinary proceedings are heard and determined expeditiously.

Be that as it may the applicant's interdiction letter is dated 17th May 1996 and was written nine days after disciplinary charges had been laid against him and during which time, presumably, the applicant remained in office.

Needless to say, in interdicting the applicant the PSC would have formed the opinion that the public interest required that the applicant should forthwith cease to perform the functions of his office. Furthermore, according to the letter, the applicant's interdiction was made effective forthwith. In this regard I note in terms of Regulation 42(2), the effective date of interdiction, where an officer has continued to perform the functions of his office shall be the date of receipt by him of the notice of interdiction.

The position under Regulation 42 may be compared and contrasted with that under Regulation 39 which appears to cover the interval between a disciplinary matter first coming to PSC's notice and the subsequent laying of disciplinary charges. In such a case Regulation 39 empowers the PSC to direct an officer in that interim period to cease to perform the duties of his office forthwith but during such period of suspension, the officer concerned shall continue to draw full salary until interdicted.

The effect of Regulation 39 is to ensure that whilst an officer is under suspicion and, perhaps, to allow investigations to proceed unhindered, he may be suspended but only on full salary. Once charged however, an officer's entitlement to draw full salary is subject to PSC's determination.

Regulation 55 in turn provides that once an officer has been convicted of a criminal charge and been sentenced to imprisonment or where he has been convicted of a criminal charge involving dishonesty, fraud or moral turpitude, such officer, shall not receive any salary or allowance or any rights and privileges after the date of conviction pending consideration of his case by the Commission.

The effect of Regulation 55 is to make it clear that upon conviction for a criminal charge and being sentenced to imprisonment, an officer immediately loses amongst other things, his entitlement to salary until PSC determines otherwise under Regulation 54 and notwithstanding that he may have lodged an appeal against his conviction.

Needless to say once imprisoned an officer is by force of circumstance and through no doing of PSC, rendered incapable of attending to the discharge of his official duties and functions albeit that he has not been suspended from duties or been dismissed from the Public Service.

Clearly Regulation 42(3) deals with the situation between drawing full salary under Regulation 39(2) and not receiving any salary at all under Regulation 55(1).

In my considered view the wording and punctuation of Regulation 42(3) leads me to the conclusion that the determination which PSC is required to make under the sub-regulation only relates to the proportion of salary which an interdicted officer shall be permitted to receive and does not extend to the permission to receive such proportion of salary as determined. Needless to say do not accept that the phrase "if any" refers to the salary payable to an interdicted officer nor, in my view, can "a nil" or "without salary" determination be considered a proportion of salary. Plainly it is not.

State counsel's submission, if accepted, would render the determination by PSC under Regulation 42(3) a two-tier process, namely, firstly, PSC would have to determine whether an interdicted officer ought to be permitted to receive salary and, if so, what proportion of salary he should receive. In other words, it is only where PSC determines that an interdicted officer should be permitted to receive some salary that it is then, and only then, duty bound to determine the proportion and not otherwise. I cannot agree that that is or could be the plain meaning and intention of a sub-regulation which plainly assumes that the interdicted officer remains an employee albeit one who, in the public interest, is not required to perform his duties.

I receive some support from the wording of sub-regulation 42(5) which not only recognises that an interdicted officer, who is subsequently exonerated, shall be entitled to the full amount of the remuneration which he would have received if he had not been interdicted. The expression "full amount" is more consistent with the view that whilst interdicted the officer receives a proportion of his salary, but, in addition, even a guilty officer is allowed such salary as the Commission may in the circumstances determine so long as he has not been dismissed.

The decision of PSC interdicting the applicant without salary is accordingly quashed as being ultra vires and PSC is directed to consider and determine what proportion of salary the applicant ought to have received from the 17th May 1995 until 26th June 1996 i.e. the period under interdiction.

The applicant's second ground challenges the impartiality of the Disciplinary Tribunal, not on the basis of anything it said or did, or omitted to do either before or during the inquiry, but purely on the basis of its composition or membership.

In particular, counsel writes:

"that one member named Savenaca Banuve was employed in the State Law Office as a lawyer, and as such there existed the likelihood that he could have sided with PSC in view of the fact that the State Law Office is the official legal arm of the PSC, thereby divesting himself of the independence and impartiality required by law ..."

No authority has been cited in support of such a bald submission but in any event I disagree and uphold State Counsel's submissions.

In the first place, the Disciplinary Tribunal in the applicant's case was comprised of three members not one as it could have been [See: Regulation 44(2)(a)], and its report to PSC would have been a joint report.

Secondly, the proper time to object to the composition of the Disciplinary Tribunal is either at the time when its membership was first made known to the applicant, or, at the latest, on the first day of the inquiry before it actually began, and not, seven months later, but, in any event the unconditional participation of the applicant and his counsel in the inquiry conducted by the Disciplinary Tribunal amounts, in my view, to a waiver of this ground of objection.

Thirdly, the function of the Disciplinary Tribunal is to hear the evidence and find the facts and make a report of its findings to PSC pursuant to Regulation 48(1). It makes no decisions nor does it determine the guilt or innocence of the applicant. The Disciplinary Tribunal can neither exonerate nor punish. In short, given the role and function of the Disciplinary Tribunal in the overall scheme envisaged by the PSC (Constitution) Regulations. I am firmly of the view, that absent any suggestion of excess of jurisdiction, the report of the Disciplinary Tribunal is not amenable to judicial review.

Fourthly, and most importantly, given that the charges were proffered by the P.S., there is not a shred of evidence in the applicant's affidavit sufficient to raise a question of bias on the part of the impugned member or of the Disciplinary Tribunal as a whole in the conduct of the inquiry. Indeed the written acknowledgement of the applicant's counsel at the end of the inquiry already referred to, speaks volumes to the contrary.

There is no merit or substance at all in this ground which is rejected.

The third, and final ground, is that the dismissal of the applicant was unduly harsh given that there were other lesser penalties available to PSC, and, considering all the circumstances of the applicant's case including the undisputed fact that he was not heard before the penalty was imposed.

Counsel for the respondent in seeking to support the applicant's dismissal submits that this ground of criticism of PSC's decision is, in reality, an attack on the merits of the decision. In other words it is a disguised appeal against penalty and is not properly a matter for judicial review which is concerned with the decision-making process and not with the decision itself.

Counsel accepts however that the applicant was not heard or called upon to address PSC, but argues nevertheless, that counsel for the applicant did mitigate on his behalf when he wrote in his final submission (at p.23 of annexure 'SNP9'):

"Even if there is found to be some very technical breaches by Narayan ... it is respectfully submitted that they do not warrant dismissal or demotion since he claims that he has done everything in total good faith and that none of the traders involved has been harmed or prejudiced in any way ... by his involvement. Mr. Narayan has been badly prejudiced and embarrassed and harassed by the apparent determination on the part of the Department to throw the book at him. One incident resulted in eight separate charges ... Narayan has suffered enough humiliation and hardship through those misguided and high-handed official actions against him. No public Officer deserves this kind of treatment from his own peers."

Furthermore, counsel submits that PSC would have been aware of a prior written warning given to the applicant by the P.S. in 1987 where he was found to have been negligent and irresponsible in the discharge of his duties and, in which he was warned that repetition of such attitudes would be dealt with seriously which could possibly jeopardise his career in the service.

In light of the foregoing and bearing in mind the number, nature and seriousness of the charges laid against the applicant and the evidence in support thereof, I am not satisfied that the decision of PSC dismissing the applicant can be properly categorised as being so unreasonable that no reasonable commission could have arrived at such a determination.

However in so far as the decision purports to have been made retrospective with effect from 17.5.95, I am firmly of the view that no such power exists in the PSC (Constitution) Regulations 1990 nor is it granted pursuant to Regulation 51(1)(a). To that limited extent the applicant's dismissal must be and is hereby amended so as to take effect from 26th June 1996.

The effect of this decision is that although the applicant's dismissal remains, PSC is nevertheless obliged in terms of this judgment to reconsider, determine, and pay the proportion of salary the applicant should have received for the period of his interdiction had PSC properly construed its powers under Regulation 42(3).

(Motion partly allowed; terms of interdiction varied.)