Kaspar v Lailai, Secretary Department of Information and Communication [1997] PGNC 89; N1587 (28 July 1997)

Unreported National Court Decisions

N1587

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 23 OF 1995
MOLEAN SYLVESTER KASPAR - Applicant/Plaintiff
And:
MR LINDSAY LAILAI SECRETARY DEPARTMENT OF INFORMATION AND COMMUNICATION - First Respondent
And:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA - Second Respondent

Waigani

Sawong J
22 May 1997
28 July 1997

Cases Cited:

Gegeyo v The Minister for Lands and Physical Planning [1987] PNGLR 531

Counsel:

M Roga for the Plaintiff

J Kairi for the Defendant

28 July 1997

SAWONG J: This was an application by way of a judicial review, leave having been granted in February 1995. In his application the plaintiff is seeking:

(a) an order in the nature of certiorari to remove into this Court and to quash the decision of the first respondent to terminate his services;

(b) an order that the plaintiff be reinstated to his former position, with the Department of Information and Communication;

(c) unspecified damages.

The matter was originally fixed for trial on 22 May 1997. On the date of the trial, both counsel indicated to the Court that there was no need to call any oral evidence as all the necessary evidence from both sides were in affidavits and which had already been filed. They also indicated that they did not wish to crossexamined either of the deponents. In these circumstances both counsel indicated that facts were not really in dispute. The only issue was the interpretation of several legal issues. On this basis I directed counsel to file written submissions. This they have done. I have read and considered carefully all the evidence and the respective written submissions.

As I alluded to earlier, the evidence for each of the parties are contain in two affidavits which have been filed.

The plaintiff’s evidence is contained in his affidavit sworn 18 January 1995 and filed on 19 January 1995. In summary and in so far as it’s relevant, the plaintiff says that he was previously employed as a public servant. He was, however, retrenched on or about 30th May 1983. The plaintiff has not stated clearly when he was retrenched, but what is quite clear is that he was retrenched either or after 30 May 1983. His retrenchment was pursuant to a Reduncy Agreement between the Public Employers Association and the then Department of Public Services. Under the terms of this agreement a moratorium was in place prohibiting the re-employment of public servants who had been retrenched. The plaintiff was one of these who was affected.

Soon after this, a new Act, the Public Services (Management) Act, 1986 came into force. Thus as far as the plaintiff was concerned, he was retrenched officer, when this Act came into force.

On 22 November 1992, he was re-employed into the Public Service with the then Department of Communication and Information.

His employment was terminated on 8th February 1993. Thus, he was employed for a period of three months and 6 days, a short period indeed.

When the Public Service (Management) Act of 1986, came into effect, the plaintiff was a retrenched officer. There was one major flaw in the provisions of this Act. It was that it did not contain any provision prohibiting the re-employment of retrenched public servants, such as the plaintiff, into the Public Service. The only provision containing such prohibition was the provisions of General Order 3.4. This came into force immediately after Act came into effect.

On 1st March 1989, the provisions of the Public Service General Orders were amended. The amendment involved the insertion of a new provision, being General Order 4.37, which explicitly prohibited the re-employment of retrenched public servants into the public service.

The issue is whether the termination of the plaintiff services were lawful or not.

Counsel for the plaintiff, Mr Roga, submits in essence that the termination of the plaintiff’s services were unlawful. He submits that the decision to terminate his services were wrong in law. Alternatively he submits that the termination was oppressive or unlawful within the meaning of S.41 of the Constitution. Section 41 reads:

“S.41 Proscribed acts.

(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case:

(a) is harsh or oppressive; or

(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or

(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act.

(2) The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.

(3) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.”

Mr Roga contends that the termination of the plaintiff’s services was unreasonable and oppressive in the circumstances. Further he contends that the plaintiff was denied natural justice, in that he dismissed, nor was he charged for any offence. He contends that as the plaintiff was not charged for any offence, nor given any opportunity to reply to those charges, if any, and therefore the 1st defendant committed a grave error which warrants a review by this Court.

Mr Kawi, counsel for the State, has not address this issue in his submission. However, I do not consider that is fatal.

Whilst I accept in principle the submissions made by Mr Roga, I do not consider that those principles are applicable in an employer/employee relationship. He has relied on the principles set out in Gegeyo v. the Minister for Lands and Physical Planning [1987] PNGLR 531. The facts of that case are quite different from the facts of that present case. In that case, the plaintiff and three others had been appointed by the Minister for Lands as members of Land Board for National Capital District. They were appointed for a one year term. Some two months and three weeks later the Minister revoked their appointments. No reasons was given by the Minister for their revocation. There the plaintiffs contended that their appointments were valid and that no sufficient ground existed for their purported revocation prior to the expiration of their terms of office.

As, I have said early whilst I accept the general principles quoted by Mr Roga, I consider that those principles are not without exceptions. As, His Honour Amet J, as he then was said in that case at p. 338:

“I consider, however, that the minister does have a discretion to revoke, dismiss or suspend a decision to appoint, for good cause after having given ample notice and advice to the person concern before taking that decision... For good reasons such as misconduct in office, such as inability to perform and the like, there must be discretion revoke such an appointment...”

I am of the view that the views expressed in the above passage are applicable in the present case.

I now turn to the provisions of the Public Service (Management) Act 1986. For a start I consider that the provisions of this Act is much more relevant and applicable to the issue before the Court.

In his submission, Mr Kawi, counsel for the Defendant has submitted that the termination of the plaintiff’s services was valid and lawful. He relies on the provisions of the Act. In particular, Mr Kawi submits that the provision of S.53 of the Act and coupled with the provisions of General Orders 3.4 and 4.37 of the Public Service General Orders makes it quite plain that the plaintiff’s termination was lawful.

Section 53 of the Act gives the Secretary of the Department of Personnel Management to formulate and issue General Orders to public servants. It also authorises the Secretary when formulating and issuing those General Orders to give effect to any relevant decision on policy made by the National Executive Council (NEC).

Section 53 is set out in Part XV of the Act. It is headed “General Orders”. The full section 53 reads as follows:

“S 53. GENERAL ORDERS.

(1) The Departmental Head of the Department of Personnel management may give to officers directions (to be known as “General Orders”), not inconsistent with this Act, as to any matter prescribed by this Act to be so provided for or that is necessary or desirable for the efficient management and control of the Public Service.

(2) In formulating General Orders under Subsection (1), the Departmental Head of the Department of Personnel Management shall give effect to any relevant decisions on policy made by the National Executive Council.”

General Order 3.4 reads as follows:

“S 3.4 A person who has been retrenched from the Public Service is not eligible to be re-appointed to the Public Service.”

This particular provision was amended on 1st March 1989 and this particular provision was inserted.

It is clear from the reading of this provision that it prohibited the re-employment of retrenched public servants into the Public Service.

I consider that the submission advanced on behalf of the Plaintiff to be misconceived. The plaintiff was not dismissed on the basis of any wrongful misconduct on his part, rather he was dismissed on the basis that he was illegally employed. In other words, I consider that the plaintiff was clearly employed contrary to the provisions of the law, namely General Order 4.37. That being the case his employment from the beginning was unlawful.

The evidence is quite clear. Mr Kaspar was clearly a retrenched public servant. His status did not change in 1989, when the General Order 4.37 came into force. Had be been employed prior to that amendment, different consequences may well follow. But that is not the case here. He was employed in 1992, clearly several years after the coming into effect of General Orders 4.37.

For the reasons I have given, I dismiss the plaintiff’s claim in toto. I find that the plaintiff’s services were lawfully terminated. It is therefore not necessary for me to consider the other submissions.

I order that that plaintiff pay the defendants costs, such costs are to be agreed, if not to be taxed.

Lawyer for the State: Solicitor General

Lawyer for the Plaintiff: Latu Lawyer