Ministry of Finance, Strategic Planning, National Development and Statistics v Nand [2024] FJPSDT 4; PSDT 01 of 2024 (13 December 2024)

IN THE PUBLIC SERVICE DISCIPLINARY TRIBUNAL
AT SUVA

PSDT CASE No. 01 of 2024

BETWEEN : THE MINISTRY OF FINANCE, STRATEGIC PLANNING,

NATIONAL DEVELOPMENT AND STATISTICS

EMPLOYER

AND : ASHWIN NAND

EMPLOYEE

Appearances

For the Employer : Mr. Ram (Attorney General’s Chamber)

For the Employee : Mr. D. Nair (Nilesh Sharma Lawyers)

Date of Ruling : 13^th December 2024

RULING ON SANCTION

BACKGROUND

1. In the substantive matter before the Tribunal, the Ministry of Finance, Strategic Planning National Development and Statistics’ (“Ministry”) had raised eight (8) allegations of misconduct against Mr. Ashwin Nand (“Nand”).
   
2. The allegations are reproduced herein below for context:
   

ALLEGATION 1: In breach of Civil Service Code of Conduct under Section 6(12) of the Civil Service Act 1999, Mr. Ashwin Nand on 06/02/24 purchased and carried alcohol in a Government vehicle.

ALLEGATION 2: In breach of Civil Service Code of Conduct under Section 6(1)(5) of the Civil Service Act 1999, whereby Mr. Ashwin Nand failed to follow instruction from the Head of Fiscal Policy Research and Analysis and consumed alcohol during the official visit on 07/02/24.

ALLEGATION 3: In breach of Civil Service Code of Conduct under Section 6(3) (12) of the Civil Service Act 1999, Mr. Ashwin Nand on 07/02/24 caused damage to one of his colleague’s mobile phone under the influence of liquor.

ALLEGATION 4: In breach of Civil Service Code of Conduct under Section 6(3) (12) of the Civil Service Act 1999, Mr. Ashwin Nand on 08/02/24 was shouting and yelling in the middle of the night causing disturbance while his stay in a hotel room in the early hours under the influence of alcohol.

ALLEGATION 5: In breach of Civil Service Code of Conduct under Section 6(5) of the Civil Service Act 1999, Mr. Ashwin Nand failed to follow instruction from the Head of Fiscal Policy Research and did not attend 5 scheduled meetings on 08/02/24 with Labasa Town Council, Sugarcane Growers Association, Valebasoga Tropik Boards Ltd, J Hunter Pearls and Savusavu Tourism Association.

ALLEGATION 7: In breach of Civil Service Code of Conduct under Section 6(1) of the Civil Service Act 1999, Mr. Ashwin Nand on 29/12/23 at around 10pm failed to behave honestly and with integrity whereby he abused his authority by forcing himself in the Honorable Assistant Ministers vehicle.

ALLEGATION 8: In breach of Civil Service Code of Conduct under Section 6(3) of the Civil Service Act 1999, Mr. Ashwin Nand on 29/12/23 argued with the Government driver Mr. Maamoon Hussein and used offensive language.

3. The hearing of the matter was held on 17^th of October and on 22^nd of November 2024. Both parties called witnesses, tendered documents, and filed written submissions thereafter.
   
4. On the 29^th of November 2024, the Tribunal delivered its unanimous opinion that the Ministry had proven Allegations 1, 2, 3, 4, 5, 7 and 8 against Mr. Nand on the balance of probabilities.
   
5. After pronouncing its opinion, the Tribunal then invited both counsel to file submissions specifically on the issue of possible sanctions.
   
6. For the Ministry’s counsel, this allowed him an opportunity to highlight the aggravating features of Nand’s conduct and, in particular, whether or not he has a disciplinary record for the Tribunal to consider.
   
7. For Nand’s counsel, this also allowed him an opportunity to raise points in mitigation.
   
8. Nand is employed at the Ministry of Finance, Strategic Planning National Development and Statistics (“Ministry”) as a Manager Macroeconomic Forecasting, Policy, Research and Analysis. He joined the Ministry on the 12^th of December 2023. He holds a Master’s degree in economics from India.
   
9. Notably, the conduct which is the subject of the Ministry’s allegations happened in December 2023 and in January 2024. This was a mere days and weeks after Mr. Nand was recruited into the Ministry. It is not clear to the Tribunal whether Mr. Nand was then under some sort of probationary arrangement. His contract was never tendered by Mr. Ram (Ministry’s counsel).
   
10. As this ruling is being prepared, only Mr. Nair (Nand’s counsel) has filed written submissions.
    
11. Notably, Mr. Ram (Ministry’s counsel) had emailed the Tribunal’s Secretariat last Friday (06^th December) to seek the Tribunal’s indulgence to file written submissions on Monday 09 December 2024 as he was attending the 26^th Attorney-General’s Conference last week. No written submission has been received from Mr. Ram.
    

SUBMISSIONS

Employee

12. The submission of the Employee is headed: ‘Mitigation Submissions of the Employee’.
    
13. At paragraph 1.1, Mr. Nair raises the following preliminary point. He asserts that the Tribunal had taken into account erroneous matters in its opinion of 29^th November 2024:
    

“1.1 The Tribunal in the decision at paragraph 7 stated that the employee through his counsel admitted to all the charges whereas it was submitted to the Tribunal, that the employee only admitted the particulars of charges 1, 2 and 5 whereas he denied the statement of offence in respect of the three charges and further denied the particulars and statement of offence in respect of the remaining four charges”

14. In the Tribunal’s view, the above assertion is not consistent with the Tribunal’s records.
    
15. In any event, once the Tribunal’s opinion is pronounced, the Tribunal is loath to revisit it. Suffice it to say that it is open to Mr. Nair to raise it as a ground for judicial review, if he wishes.
    
16. To even raise the point as such at this juncture is a matter of utmost concern to the Tribunal. It may be viewed as a subtle intimidation that: unless the Tribunal imposes a lenient sanction, Mr. Nand will apply for judicial review.
    
17. In any event, Mr. Nair would be well advised not to repeat this in future. The Tribunal shall proceed without fear or favour.
    
18. In addition to the above, Mr. Nair also submits as follows:
    

“1.2 The Employee submits his mitigation before the Tribunal determines the penalty. The employee pleads to this honourable Tribunal to consider the following factors;

1. He employee is 42 years of age (DOB 02/02/1982), married with two children son aged 4 ½ and daughter 8 years. Both attending school.
   
2. He joined the civil service in 2006 and served at the Ministry of Finance until 2008, from 2020 to December, 2023 served at the Ministry of Employment and from December, 2023 rejoined the Ministry of Economy.
   

100. He is supporting his elderly parents and grandmother as well who are solely dependent on him.
     

4. He has substantial financial commitments –
   

1. Housing Authority Mortgage - $1200 per month payment
2. Rent - $500.00 month
3. Utility bills - $100 month
4. Transportation costs - $400.00 month
5. After care for daughter - $30.00 per week
6. Day-care for son - $70.00 per week
   

5. The financial commitment at (i), if not honoured would result in irreparable consequences. Although the spouse is employed at Telecom as Executive Assistant, the employee has been the primary breadwinner and responsible for the livelihood of the family.
   

1.3 In addition, the employee respectfully requests the Tribunal to consider that he is a career civil servant, having served the Civil Service for about 17 years and was never subject to any form of disciplinary action during his career. He has always performed his duties diligently and efficiently and this is proven by his recent appointment as Manager Fiscal Policy Research and Analysis – Ministry of Finance, Strategic Planning, National Development and Statistics after going through the selection process.

1.4 After the cessation of his salary from 29/05/2024 to date, he is faced with extreme difficulties in sustaining his livelihood and foremost is sincerely remorseful and undertakes that he will at all times uphold the civil service code of conduct.”

SANCTION

19. The Tribunal had opined that Mr. Nand actually breached four (4) Civil Service Codes of Conduct through the seven (7) acts of misconduct he committed.
    
20. This means that Mr. Nand was found:
    

1. to have not behaved with honesty and integrity in the course of his employment in the civil service;
   
2. to have not treated everyone with respect and courtesy and without coercion or harassment of any kind when acting in the course of employment in the civil service;
   
3. to have not complied with all lawful and reasonable directions given by persons in authority in the his ministry, department; and
   
4. to have not behaved in a way that upheld the Civil Service Values and the integrity and good reputation of the civil service.
   

21. Considering the above, what would be the most appropriate sanction/s to impose on account of Mr. Nand’s acts of misconduct?
    
22. In State v Public Service Commission, Ex parte Kotobalavu [2004] FJHC 14; HBJ0010J.2002S (29 March 2004, the Civil Service Code of Conduct was discussed as follows:
    

“The general principles and rules that provides the underpinnings of such encodement, is the belief that civil servants are servants of the State and owe a duty of loyal service to the State. This duty is owed in turn to the Government of the day. The theme of such a code is derived from the need for civil servants to be, and to be seen to be, honest and impartial in the exercise of their duties.”

23. Regulation 22 (1) of the Civil Service (General) Regulations 1999 (reproduced verbatim below) outlines the range of sanctions which the Tribunal may impose:
    

“22 (1) If a disciplinary action is instituted against an employee, then the Public Service Disciplinary Tribunal upon being satisfied that the employee has breached the Civil Service Code of Conduct, may direct the permanent secretary to implement one or more of the following penalties-

1. terminate the employees employment;
   
2. demote the employee, provided that the disciplinary charge is related to performance and the employee had a good performance record at a lower level prior to promotion;
   
3. transfer or redeploy the employee to other duties, provided that the disciplinary charges relate to the specific location of the employee;
   
4. defer a merit increase in remuneration for the employee for a specified period;
   
5. reduce the level of the employee’s renumeration, provided that the reduction is within the salary or classification of the position occupied;
   
6. impose a penalty of not more than 10% of the employee’s annual salary;
   
7. reprimand the employee;
   
8. forfeit all or part of the employee’s renumeration which was withheld during the period of suspension from duty.”
   

24. In imposing an appropriate sanction, the Tribunal may be guided by previous sanctions imposed for similar breaches of the Code of Conduct. The Tribunal must also ensure that the sanction imposed is proportionate to the level of misconduct established. Tabulated herein-below are some sanctions imposed in previous disciplinary cases involving breaches of the Civil Service code of conduct.
    

Citation	Particulars	Sanction
State v Public Service Disciplinary Tribunal, ex parte Mohammed Faiyaz [2019] FJHC 1081; JR07.2018 (25 October 2019)	Storing Illicit materials on desktop	Not Stated
Nair v Permanent Secretary for Education [2008] FJHC 140; HBJ02.2008 (11 February 2008)	Insubordination against the Head of School	Transfer
State v Public Service Commission, ex parte Ledua [2016] FJHC 245; HBJ6.2013 (31 March 2016)	Not stated	Termination
Public Service Disciplinary Tribunal, ex parte Permanent Secretary for Ministry of Works, Transport & Public Utilities [2019] FJHC 494; HBJ8.2014 (24 May 2019)	Habitual late arrivals	Termination
State v Permanent Secretary Lands & Mineral Resources, ex parte Rupeni [2001] FijiLawRp 34; [2001] 2 FLR 94 (3 May 2001)	Proper procedures in recruiting staff not followed	Termination
Powell v Permanent Secretary Education [2019] FJHC 908; HBJ07.2019 (17 September 2019)	Sharing defamatory content against senior official of the day on social media Facebook during election campaign period.	Termination
State v Permanent Secretary for Women, Social Welfare & Poverty Alleviation, Ex parte Naidu [2006] FJHC 140; Judicial Review HBJ 54J of 2003 (4 May 2006)	I. Failure to comply with the direction of the Permanent Secretary; and II. Refusing to attend a meeting called by the Permanent Secretary	Demotion and Reduction in salary

25. The Tribunal has considered the cases tabulated above for guidance.
    
26. The Tribunal recalls that after delivering its opinion on 29 November 2024, it (Tribunal) did specifically ask Mr. Ram (Ministry’s counsel) to highlight in his written submissions as to whether or not Mr. Nand has a previous disciplinary record in the Fiji Public Service.
    
27. Given that Mr. Ram has not bothered to file written submissions, the Tribunal assumes that Mr. Nand has no previous disciplinary record. In summary, the Tribunal:
    

1. benchmarks its decision here against the cases tabulated above.
   
2. accepts that this is the first ever disciplinary case recorded against Mr. Nand.
   
3. accepts the other points raised in mitigation on behalf of Mr. Nand by Mr. Nair.
   

28. The Tribunal did consider two specific options from the range of sanctions set out in Regulation 22 (1) of the Civil Service (General) Regulations 1999.
    
29. These are:
    

Either:

1. Termination with reasoned explanation given for the same.
   

Or:

2. Reprimand the employee and forfeit all or part of the employee’s renumeration which was withheld during the period of suspension from duty.
   

30. Given the particulars of the breaches in question in this case, and the fact that Mr. Nand has no previous disciplinary record in the civil service, and after considering the mitigation submitted on his behalf, and mindful of the principles of proportionality, and there being no evidence as to whether or not Mr. Nand was actually being engaged on some sort of probationary employment at the Ministry at the time in question, the Tribunal is of the view that the second sanction would be the appropriate one to impose on Mr. Nand in this case.
    

DIRECTIONS

31. Pursuant to Regulation 22 (1) and (2) of the Civil Service (General) Regulations 1999 the Permanent Secretary for the Ministry of Finance, Strategic Planning, National Development and Statistics is directed as follows:
    

1. To reprimand Ashwin Nand in writing that his conduct by carrying alcohol in a Government vehicle, consuming alcohol on a work trip, damaging the phone of a work colleague, not attending scheduled meetings and not treating other employees with courtesy and respect is denounced;
   
2. To notify Ashwin Nand in writing that any further breaches of the code of conduct or any misconduct may result in termination;
   

100. That the salary that was withheld from 29/05/2024 to the date of this decision is wholly forfeited; and
     

4. Ashwin Nand is to resume work seven (7) days from the date of this decision, that is, 20^th December 2024, however any salary calculation is to begin from 16^th December 2024.
   

32. The Tribunal so orders.
    

Signed __________________________________
Mr. Anare Tuilevuka
[Chairman – Public Service Disciplinary Tribunal]

Date: 13^th December 2024

Signed ___________________________________
Ms. Deepika Prakash
[Member - Public Service Disciplinary Tribunal]

Date: 13^th December 2024

Signed ___________________________________
Mr. Jeremaia N.L Savou
[Member - Public Service Disciplinary Tribunal]

Date: 13^th December 2024