In the Matter of the National Judicial Staff Service Appeal Tribunal; Re Paul Gul [1999] PGDC 26; DC265 (25 November 1999)

DC265

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

In The Matter of the National Judicial Staff Service Appeal Tribunal Persuant
To Section 18 Of National Judicial Staff Service Act 1987
Complainant

V

In The Matter Of Paul Gul of Hagen Whp
Defendant

Hagen: M.M. Pupaka
1999: 25th November

Counsel
Appellant In Person.
W. Hagahuno For The Secretary.

M. PUPAKA: Paul Gul, the Appellant was at the relevant times, employed as a Cleaner by the NJSS at the Mount Hagen Court House. He was, after being allegedly charged with an appropriate disciplinary offence, purportedly dismissed by the Secretary through Mr. Robin Guria, the Deputy Secretary on the 17th of July 1997.

The facts in this appeal are very brief and those are these: -

The appeal file before this Tribunal contains only the letter of Notice of Termination and the Notice of Appeal. Out of these two documents the charge seems to have been that the Appellant accepted and took a "fee" of K35.00 from one Gilson Thomas in exchange for drafting a summons for the said Gibson Thomas. That was not only not proper and it mounted to disgraceful conduct but also that that was done against lawful directions against such a practise as issued by the Assistant Registrar.

I can not accept that the Appellant was charged with that offence, due to the lack of information and evidence regarding any such charge. The way the letter of termination is drafted, it may very well be true that the Appellant was not charged with any offence too. It can only be guardedly said the Appellant was "allegedly" charged with the disciplinary offence that seems to be raised by the scant facts here. Under those circumstances the appellant was purportedly terminated from employment as I said. As a matter of the NJSS Act 1987, the Secretary lacks the power to dismiss or terminate any one in the NJSS. He can only make the appropriate recommendation to the Judicial Council (S.16 (5)(e) of the NJSS Act 1987).

There are a lot of unanswered questions raised here. If the Appellant was not charged, (and the question of whether or not he was charged must remain not properly answered), the appellant could not have answered or replied to any charge. Hence he would not have been heard by the Secretary before the decision was made. The bare minimum of the principles of the natural justice is the right to be heard. The seeming lack of any form of adherence to those principles or the requirements of them this Tribunal can not ignore.

Being one of the co-chairmen of the National Judicial Staff Service Appeals Tribunal I have adopted the view that where the Secretary has purported to "terminated" or "dismiss" a member of the NJSS, the Tribunal on appeal could and may rectify it by making that appropriate recommendation, provided of course that the appeal otherwise has no merits and there is nothing otherwise wrong with the decision reached. For instance in this appeal if the Tribunal were to reach the conclusion that this particular appeal must fail, and further agree with the Secretary that the appellant should ultimately not remain in the NJSS, I would have no trouble in recommending to the Judicial Council that the Appellant be dismissed. By doing so I would be essentially confirming the Secretary’s discretion. All that not withstanding the fact in law is that the Judicial Council is not bound to adopt the Tribunals (or for that matter the Secretary’s) recommendation. Indeed I have made the appropriate recommendation where the Secretary had purportedly dismissed or terminated an officer of the NJSS, in other appeals such as this.

However, in this instance, when the Secretary has seemingly "terminated" without first charging the Appellant and thereby failing to adhere to the minimum requirements of the principles of natural justice, and more particularly, for the reasons I would give shortly, after not quite agreeing with the Secretary that the Appellant ought to be removed from the NJSS, I intend to vary the Secretary’s decision.

That said I must give the reasons why I do not agree with the Secretary that the Appellant ought not remain in the NJSS.

The appellant is illiterate. There is no doubt of that. He could not have drafted any one’s summons. He can only have aided and abetted in such a practise by ensuring, enabling or otherwise in any way actuating the commission of the offence. Therefore I take it to be true that this Appellant took the money, intended to be "fees" from the person identified as Gibson Thomas and handed it over to one Jeffery Paiara. The latter being a member of the NJSS and who it was that actually did the drafting of the summons.

In this Appeal the Appellant has said that it usually is part of his duties to be available at all times to, apart from his duties, carry out lawful instructions given by clerks, and others more senior in status than himself. He also says he did not know what the K35.00 he collected and handed over to this clerk – Jeffery Paiara – was for. He says he did not receive any money for anything and that he is innocent of the charge and allegations.

I have already alluded to the lack of evidence of any sort regarding this matter except what is disclosed by the letter of termination and the notice of appeal. Under circumstances such as this I can only accept what the Appellant says. He may not have got any part of the money or that he may not have at any time been actually aware of and be conscious of any unlawful activity of the Clerk Jeffery Paiara. At the end of the day the Appellant should have the benefit of this Tribunal’s doubts.

Even then, if the Secretary did consider there was enough conscious participation by the Appellant, I should think the circumstances can only have warranted the imposition of any of the lesser penalties available under the Act. For one thing is certain. The Appellant was an illiterate and he still is. He could not have drafted any one’s summons for fees. That much the Assistant Registrar in Hagen should have been aware of, and that through him, the Secretary should have been informed. In the end result, all the above considered, I do detect form what scant evidence there is, that the appellant being a reasonable person should be wary of playing a part in unethical and disgraceful activities engaged in by clerks or other persons in the NJSS. He should know that much. It should not be that persons like the Appellant should feel they would shoulder no responsibilities. It is proved, by his own admission of his part in what happened then, that the appellant played a part in an unlawful activity. I consider the Appellant should be given clear warning in this regard, but with that he be allowed to resume duties.

That said I just happen to be aware of the fact that there are five (5) persons employed at the Mt. Hagen Court as Cleaners. Three (3) are still employed. One is on suspension pending a similar appeal, and this Appellant is the other and fifth Cleaner. That is far too many Cleaners for any one place the size of the Hagen Court premises. The Appellant is an able bodied and obviously young man. There is, as it seems a shortage of Security Guards in Hagen as it is. Therefore I intend to order that the Appellant be transferred to security duties, when he does resume duties, on a level of pay commensurate with the number of years he has been employed at the Hagen Court House.

Ergo I make the following orders:-

The appeal of the Appeal is upheld, and the Secretary’s decision dated 17/7/97 is varied. The Appellant be allowed to resume duties. After the resumption of duties the Appellant be transferred to security duties on a level of salary reflective of the Appellant’s number of years with the NJSS.

The Appellant’s security duties would be as properly detailed and allocated and rostered by the Assistant Registrar or his delegate.

In Person: Complainant
W. Hagahuno: Defendant