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 t in the nature of certiorari to remove into this Court anrt and to quash the decision of the first ndenterminate his services;

(b) t an0; an order that the plai plaintiff be reinstated to his former position, with the Department of Information and Communication;

(c) ;&#16specified died damagesmages.

The matts orily fior tria trial on l on 22 Ma22 May 1997. On the of the trial, both both counsel indicated to the Court that there was no need to any evides all tall the nehe necessacessary evidence from both sides were in affidavits and which had already been filed. They also indicated they dhey did not wish to crossexamined either of the deponents. In these circumstances both counsel indicated that facts not really in dispute. The only isss the interpreerpretation of several legal issuesssues. On thiss I directed couno ouno file written submissions. This they have.&#160 #160; I have read and coreddered carefully all the evidence and the respectiveten submissions.

As I alluded to earlier, the evidenvidence for each of the parties are contain in two affidavits which have been f

The plaintiff’#8217;s evidence is contained in his affidavit sworn 18 January 1995 and filed on 19 January 1995. Imary and in so far as it&s it’s relevant, the plaintiff says that he was previously employed as a public servant. He howeretrenched on or abor about 30th May 1983. The plaintiff has noted cled clearly arly when he was retrenched, but what is qclear is that he was retrenched either or after 30 May 1983. His retment was purs pursupursuant to a Reduncy Agreement between ublic Employers Associationation and the then Department of Public Services. Under the terms of thisemereement a moratorium waslace prohibiting the re-empe-employment of public servants who had been retrenched. The plaintiff wa of these hese who was affe

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

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

His employment went 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 majaw in then the provisions of this Act. It was that it did not cn tain any provision prohibiting the re-employment of retrenched public servants, such as taintiff, into the Public Service. Thy provision sion containntaining such prohibition was the provisions of General Order 3.4. This into force immediateliately after Act came into effect.

On 1st March 1989, the provisions of the Public Service General s were amended. The amendinvolhed the inse insertion of a new provision, being eing 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 ce that that the termination of the plaintiff’s services were unlawful. He submits that tcision toon to terminate his services were wrong in law. Altively he submits that the termination was oppressive or unor unlawful within the meaning of S.41 of the Constitution. Section ads:

“S.41;S.41&#161 Proscricts.

(1)&#16) ـ&#1otwithtwithstanditanding anything to the contraryny other provision of any law, any act that is done under a valid law but in the particularcular case:

(a) & is hor oppressive; ore; pr

(b) ;&#16 not warranarranted byed by, or is disproportionate to, the requirementthe pular mstanr of the particular case; or

(c) &;  i60; i60; is oths oise note 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.

(20; 160; The burden of showint 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 termin of laint8217;vicesunreasonable and opnd oppresspressive iive in then the circ circumstances. Further he contends the plhe plaintiff was denied natural justice, in that he dismissed, nor was he charged for any offence. He contends that as thintiaintiff was not chargedany offence, nor given any opportunity to reply to those chse charges, if any, and therefore the 1st defendant committed a grave erroch warrants a review by this Court.

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

Whilst I accept in principle the submissions made by Mr Roga, I do not consider those principles are applicable in an employer/employee relationship. He has relied oied on thecprinciples 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 at present case. In that case, plaintiff anff and three otee others had been appointed by the Minister for Lands as memberLand Board for National Capital District. They They were appointed for a one year term. Some two monthsthree weeksweeks later the Minister revoked their appointments. No reasons was given by the Mir for their revocation.&ion. Thhentifftendet theirtheirtheir appo appointments were valid and that no suffisufficient ground existed for their purported revocation prior to the expin of termoffice.fice.

As, I have said early whilst I accI accept the general principles quoted by Mr Roga, I consider that those principles are not without exceptions. As, His Honour Amet he thhe 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 ahaving given ample notice aice and advice to the person concern before taking that decision... ood reasons such as misconisconduct in office, such as inabilitpeto perform and the like, there must be discretion revoke such an appointment...”

I now turn to the provisions of the Public Service (Management) Act 1986. For a startnsider that thet 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 160; termination of the plae plaintiff’s services was valid and lawful. He relies on the sions of s of the Act. In parti, Mr Kawi submits mits that the provision of S.53 of the Act and coupled with the provisions of General Orders 3.4 and 4.37he PuService General Orders makes it quite plain that that the plaintiff’s termination wasn 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. Io authorises the Secretarretary when formulating and issuing those General Orders to give effect to any relevant decision on polade by the National Executive Council (NEC).

Section 53 is set out in Part XV of thef the Act. It is headed “Generdl Orders”. Tll se 53oneadsreads as foas follows:

“S 53. GENERAL ORDERS.

(1) &##160; Thartmental of d of the Dehe Department of Personnel management may give give to officers directions (to be known as “Generaers&#), noonsistent with this Act, as to any matter prescribed by this Act to be o be so prso provideovided for or that is necessary or desirable for the efficient management and control of the Public Service.

(2) &&#160form latinlating Gene General Orders under Subsection (1), the Departmental Head of the Department of Personnel Management shall give effect to any relevanisionpolice by the National Executive Council.l.”<221;

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 wa dismissedissed 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, sider the the plaintiff was clearly employed contrary to t to the provisions of the law, namely General Order 4.37. That beingcase mployment fent from the beginning was unlawful.

The evidence is quite clear.&#1r. Mr Kasas clearly a retrenctrenchelic servant. His status did not chan 19in 1989, when the General Order 4.37 came into into force. H been employed pro that ahat amendment, different consequences may well follow.&#ow. But that i the case here.&ere. He was emp in 1992, clearllearlyral years after the coming into effect of General Orders 4.rs 4.37.

For the reasons I have given, I dismiss the plaintiff&#821laim to. I find find that the plaintiff’s services wces were lawfully terminated. It is therenot necessary fary for me to consider the other submissions.

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

Lawyer for the State: Solicitor General

Lawyer for the Plaintiff: Latu Lawyer