Waihin v Secretary, NJSS [2004] PGDC 68; DC407 (16 December 2004)

DC407

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

BETWEEN

Raymond Waihin
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 is a Registry Clerk at Aitape Court House. He has appealed to this Tribunal against the decision of the Secretary of the NJSS dated 29th August 2000.

The penalty was imposed after he was charged for disgraceful or improper conduct under Section 14 (i) of the NJSS Act 1987 (as amended). The charge dated 13th April 2000 reads:-

"You absconded from work for some weeks from- 20/09/99 to 01/11/99. You failed to notify and seek approval from your superiors for that matter".

According to the Appeal Book the Notice of the Charge was served on the Appellant on 16th May 2000. It was hand delivered. According to the appellant, he did not reply to the charge.

The Secretary after considering reports relating to the charge found the charge to have been sustained and imposed the penalty which read:-

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

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

The Appellant was allowed every opportunity to reply to the charge. He did not reply as mentioned. However on the appeal, he admitted the charge and I am satisfied on that. 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. However he has not provided his reasons on the penalty. The Tribunal will rectify this failure by considering all factors relevant to the assessment of the penalty.

Recommendation for dismissal is not an automatic penalty for the offence that the Appellant has been charged for. Section 16 (5) of the Act sets out penalties that may be imposed. Recommendation for dismissal is one of them. The Secretary did not consider other penalties available to him. Instead, he opted for the ultimate penalty. In my view, this penalty should be imposed only in cases when the nature of the offence is so serious which warrant recommendation for dismissal.

I accept from the Appellant that his wife, Walabaka Regina Waihin has a long history of illness back dated to 1996. In fact she has been "clinically diagnosed to be suffering from tuberculosis of the limp nodes lungs and pericardium", she is required to be under medication all the time. At the moment the Appellant's wife had been admitted at Raihu District Hospital in Aitape and will be discharged on 12th July 2005.

At the time, the Appellant was alleged to have been absconded from work, he as in Lae attending to his sick wife and child, David Saube Waihin (son). His son has since died and buried in Lae. At that time, they were attending Angau General Hospital.

According to the record he did apply for LWOP and went to Lae but he over stayed for some weeks. It was not abscondment as such. I also accept that the Appellant is a hard working person. He has no previous record of disciplinary offences against him. He has served the Department for more than (10) years. I am of toe view that the Appellant is not a threat to the institution's integrity and will not re offend. The Appellant is still working and receiving his salary.

In all circumstances, in my view, the Secretary's recommendation to dismiss the Appellant is harsh and oppressive.

Accordingly I quash that penalty and substitute it with a fine of 20% of the Appellant's gross fortnightly salary.