Anjuan v Secretary, NJSS [2004] PGDC 29; DC226 (16 December 2004)

DC226

Papua New Guinea
[IN THE DISTRICT COURT OF JUSTICE]

BETWEEN

Leo Y Anjuan
Appellant

V

Secretary, NJSS
Respondent

Wewak: P. P. Poloh
2004: 15th And 16th December

Counsel
Appellant in Person.
Bernard Koea for The Respondent.

Decision

Poloh: The Appellant has appealed against the decision of the Secretary of the NJSS dated 27th September 2000. That decision was imposed on the appellant after he was charged that:-

"You misappropriated K400-00 being for court bail during the month of November 1999. Further, you have failed to produce receipt of the same when asked by the Clerk of court".

The charge dated 22nd June 2000 was served on the appellant on 30 June 2000. He did reply to the charge. According to him, he replied to the charge on 30th June 2000. The penalty imposed after the charge was found to have been sustained reads:-

"You be referred to the Judicial Council for dismissal".

The Appellant's notice of appeal is based on excessive severity of the punishment.

On the Appeal, I am satisfied the Appellant was allowed every opportunity to reply to the charge which he did. The appellant has admitted the charge. Accordingly the Secretary's decision in relation to the charge is in order.

In relation to the penalty, the secretary has imposed the ultimate penalty under Section 16 (5) (E) of the NJSS Act 1987 (as amended) by recommending to the Judicial Council for the appellant to be dismissed from the service. There are other penalties available to him under the Act but he did not consider them. In arriving at the penalty imposed the secretary has not provided his reasons for his decision. However this Tribunal will rectify the failure by considering all factors relevant to the assessment of the penalty.

As the result of the charge the appellant was suspended from duty without pay on 4th August 2000. The suspension from duty without pay was uplifted on 31st May 2001. He has been suspended from duty without pay for the period of 11 months And 8 Days. It is too long a period and I so accept from the Appellant that he and his family have suffered generally.

The Appellant has appeared before the Maprik District Court on the same charge. He was convicted and fined K100.00 in default three (3) months I.H.L. and placed on good behaviour bond for the period of six (6) months. Furthermore he was ordered to repay the K400-00 to the victim. The Appellant has since paid the fine and repaid the K400-00.

I take into account that the Appellant has served the NJSS for well over ten (10) years since July 1993. He has a record of prior serious disciplinary offence against him for being absent from work without valid reason and was demoted by a salary level. Q,

The Appellant had resumed duty after the uplifting of the suspension on 31st July 2001. However according to him, he has not been paid or otherwise reimbursed for the period he was suspended (11 months and 8 days). Section 20 of the NJSS Act 1987 States:-

"Where an officer has been suspended in connection with a charge of a disciplinary offence, he is entitled to receive his pay during the period of suspension unless he absconds or unless it is otherwise ordered by the council after receiving a report from the secretary".

In this case, the appellant in my view should have been paid for the said period when the suspension was uplifted.

The Appellant is now in jail at Boram Cis serving a sentence if five (5) years 11 months and three (3) weeks for the offence of sodomy. He is due to be released with remission on 7th April 2008.

In all circumstances, the appellant has paid the price for what he has done. Recommendation for dismissal in my view is harsh and oppressive.

Accordingly I upheld the appeal on the ground of severity of the punishment. I quash the decision of the secretary and substitute it with a fine of 20% of the appellant's gross fortnightly salary. I further order that the appellant be reimbursed his salary during the period of his suspension.

Lae 06/01/05 2:39 Pm