Lingas v NJSS [2004] PGDC 30; DC235 (20 December 2004)

DC235

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

BETWEEN

Margaret Lingas
Appellant

V

Secretary, Njss
Respondent

Madang: P.P.Poloh
2004: 18th and 20th December

Counsel
Appellant In Person
Bernard Koea For The Respondent.

DECISION

POLOH: Margaret Lingas, the Appellant was employed by the NJSS as a Assistant Registrar of the National Court in Madang. She is employed on a Contract (Category "B" Contract) of the Standard Terms and Conditions for Employment of Senior Officers in the Public Service (1999). A Contract of Employment was made by the direction of the National Executive Council and issued by the NJSS in accordance with the NJSS Act 1987 (as amended). The appellant has signed a Contract of Agreement for the term of three (3) years. Her Contract of Employment will expire on 31st December 2004.

At the moment, the appellant is not working but still on the pay. She is on suspension as the result of this charge now the subject of this appeal.

The Appellant has appealed to this Tribunal against the decision of the Secretary of the NJSS dated 3rd July 2003.

The penalty was imposed after she was charged that:-

"You misappropriated a sum of K270-00 as compensation payment of Mr John Kaut, and acted in a manner that was disgraceful and improper".

There is no copy of the Notice of the charge in the appeal Book. However the Appellant is aware of the charge as it was served on her on 31st March 2003.

The Appellant replied to the charge on 1st April 2003. The Secretary after considering relevant reports relating to the charge and further necessary reports in his view found the charge to have been sustained and imposed the penalty which reads:-

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

The Appellant's Notice of Appeal is based on the excessive severity of the punishment.

On the Appeal I am satisfied that the appellant was allowed every opportunity to reply to the charge which she did. In fact she has admitted to the charge. Accordingly the Secretary's decision in relation to the charge is in order.

In relation to the penalty, the Secretary has recommended to the Judicial Council for the Appellant to be dismissed from the Service. Section 16 (5) of the NJSS Act 1987 (as amended) sets out the penalties that may be imposed by the Secretary. Recommendation for dismissal is one of them. There are other penalties available to him but he did not consider them. Instead he opted for the ultimate penalty, recommending to the Judicial Council for the Appellant to be dismissed from the Service.

In arriving at this penalty the Secretary has not provided his reasons for his decision. However this Tribunal will rectify the failure by considering factors relevant to the assessment of the penalty.

No doubt the offence committed by the Appellant is serious. She is lucky not to have been referred to the Police for prosecution under the Summary Offences Act as the amount involved does not exceed K500-00. She has also abused the trust placed on her.
t take into account that the Appellant had repaid the amount of K270-00 to the victim John Kaut. I also take into account that the Appellant has not prior record of disciplinary offence against her. If there is any, it was not brought to the attention of the Tribunal.

The Appellant has shown remorse on what she had done. She has served the NJSS for more than twelve (12) years. I am also of the opinion that the Appellant will not re-offend.

After having said all that the end result is that I up held the appeal in relation to the severity of the punishment. Accordingly I quash the Secretary's recommendation to the Judicial Council for dismissal and substitute it with a demotion to a position of a lower classification and to a salary within that classification. This Tribunal also orders the Appellant be transferred to another Section/Division within the NJSS establishment.