N2900

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 724 OF 2004

Between:

FRANCIS DAMEM, ATTORNEY GENERAL AND
SECRETARY FOR JUSTICE DEPARTMENT
-Plaintiff/Applicant-

And:

JERRY TETAGA, CHAIRMAN
PUBLIC SERVICE COMMISSION
-First Defendant/Respondent-

And:

PUBLIC SERVICE COMMISSION
-Second Defendant/Respondent-

And:

ZACCHERY GELU
-Third Defendant/Respondent-

And:

MAGARET ELIAS, SECRETARY TO DEPARTMENT
OF PERSONNEL MANAGEMENT
-Fourth Defendant/Respondent-

Waigani : Injia, DCJ
2005 : July 13th
September 2nd

Judicial Review – Review of Public Service Commission’s decision to allow review of disciplinary action – Disciplinary action – Dismissal of Solicitor-General on disciplinary grounds – Application by Departmental Head (Attorney-General) – Whether Public Service Commission followed prescribed procedure – Failed to follow prescribed procedure in summonsing Attorney-General (Departmental Head) to attend "hearing", failed to give him opportunity to be heard, failed to notify Attorney-General of decision – Decision quashed – Matter remitted to Public Services Commission for re-hearing – Public Service Management Act 1995, s.18(3).

Statutory interpretation – Public Services Management Act 1995, s.18 – Clause 25.1(d) of Contract of Employment of between Solicitor-General and Secretary, Department of Personnel Management and Attorney-General – Whether Clause 25.1(d) of the Contract ousts jurisdiction of Public Services Commission under s.18 of the Act to conduct review of personnel matter – Clause 25.1(d) does not oust jurisdiction of the PSC – The aggrieved officer has an option of either seeking a review under s.18 of the Act or seeking juridical review under Order 16 of the National Court Rules. Public Services Management Act 1989, ss.18, s.40, s.42 and 41(3) & 5 s.51, s.52, s.53, s.54; Attorney-General Act 1989, s.10 & s.11; National Court Rules Order 16.

Cases cited:
The Independent State of Papua New Guinea –v- Phillip Kapal [1987] PNGLR 417.
Burns Philp (New Guinea) Ltd –v- Kekedo [1988-89] PNGLR 122.
Allan Pinggha v PSC (2005) N2850

Counsel:
P. Kuman for the Plaintiff
E. Andrew for First and Second Respondents
A. Baniyamai for the Third Respondent

2nd September 2005

INJIA, DCJ: The Plaintiff (Mr. Damem) is the former Attorney-General of Papua New Guinea. The Third Defendant (Mr. Gelu) is the former Solicitor-General of Papua New Guinea. Mr. Damem applies for judicial review of the Public Service Commission’s (PSC) decision to grant an application by Mr. Gelu to review the Fourth Defendant’s decision to dismiss him on disciplinary grounds. The application is made under Order 16 of the National Court Rules. Leave to apply for judicial review was granted on 7 June 2005.

The brief facts are that on 24 August 2004, Mr. Gelu filed the application under s.18(1) of the Public Service Management Act 1995 ("PSM Act"). On 23 September 2003 the PSC made its decision. The PSC decided that the Acting Secretary for Department of Personnel Management ("DPM"), should revoke her decision and re-instate Mr. Gelu to his position. The PSC gave detailed reasons for its decision. The decision was communicated to the Acting Secretary, DPM. On 10 October 2004, the Acting Secretary, DPM wrote to Mr. Damem requesting him to implement the PSC decision. Mr. Damem refused and challenged the PSC’s decision by filing these proceedings. 

Mr. Damem applies for an order in the nature of certiorari to quash the PSC decision on the grounds that it was made ultra vires or in breach of the procedure prescribed by s.18 of the PSM Act. In the original statement in support of application for leave, the grounds of review are pleaded are:

(a)	Breach of Section 18 of Public Service (Management) Act 1995

The PSC breached mandatory provisions under Section 18(3) of the Public Service (Management) Act 1995 (as amended) in conducting its hearing in that:

(i)	it did not "summon" the Plaintiff/Applicant or his delegate as required under Section 18(3)(a) and (b) to respond to the Third Respondent’s "complaint" for review before the PSC.

(ii)	Despite not summoning the Plaintiff/Applicant or his delegate, the PSC proceeded to hear and determine the "complaint" of the Third Respondent.

(iii)	The PSC then proceeded to make a decision on 23 August 2004 which was after lapse of more than 9 months and contrary to Section 18(3)(d)(i).

(iv)	The PSC, despite not summoning the Plaintiff/Applicant and making its decision after 9 months, then further failed to "notify" the Plaintiff/Applicant as is required under Section 18(3)(c)(ii)."

In his amended statement in support, Mr. Damem pleads an additional ground. That is, the PSC lacked jurisdiction to hear and determine Mr. Gelu’s complaint, on the basis that:

"Clause 25.1(d) of the Third Defendant’s Contract of Employment does not give any jurisdiction to the PSC to hear Mr Gelu’s complaint."

Mr. Damem relies on his affidavit sworn on 24 November 2004. 

The respondents rely on various affidavits. The PSC relies on the affidavit of Michael Koimo sworn on 28 June 2005. Mr. Gelu relies on his affidavit sworn on 29 April 2005. 

The parties agreed to seven (7) issues which are before me for determination and made submissions on them. These are:

"1.	Does clause 25(1)(d) of Gelu’s Contract of Employment prohibit Mr. Gelu from invoking the jurisdiction of the Public Services Commission?

2.	If the answer to Issue 1 is YES, does the Public Service Commission (PSC) have jurisdiction under Section 18 of the Public Service Management Act to review the decision of the Secretary for Personnel Management in terminating Mr. Gelu’s Contract of Employment regardless of Clause 25 of the Contract of Employment?

3.	If the answer to Issue 1 is YES, is clause 25(1)(d) inconsistent with Section 18(1) of the Public Service (Management) Act, null and void and of no effect?

4.	Does the failure by the PSC to strictly follow the procedures under Section 18 of the Public Service (Management) Act makes the subsequent decision arrived at null and void and of no effect?

5.	Does the Attorney-General have a discretion to refuse to implement the decision of the PSC after the Secretary for the Department of Personnel Management has decided to give effect to the decision of the PSC by directing that Mr. Gelu be reinstated to his position as Solicitor-General?

6.	Does the Attorney-General have the right to challenge a decision of the Public Service Commission dated 23 August 2004 and the decision of the Secretary for the Department of Personnel Management to give effect to the decision of the PSC dated 23 August 2004 and reinstate Mr. Gelu to his substantive position as Solicitor-General and Public Servant on 10 September 2004.

7.	What is the effect of a decision of the PSC after the thirty days period under Section 18(3)(d)(ii) of the Public Services Management Act has lapsed."

These issues involve interpretation of s.18, s.41(3) and (5) of the PSM Act and Clause 25.1.d of the Contract of Employment ("the Contract") entered into between the Mr. Gelu on one part and Mr. Damem and the Fourth Defendant for the State. They also require consideration of relevant provisions of the Attorney-General Act 1989 under ("AG Act") under which office of the Attorney-General and the Solicitor-General are established.

Employment of officers in the National Public Service is governed by the PSM Act. The Department responsible for Public Service is the Department of Personnel Management (DPM) which is established under the PSM Act. DPM is headed by a Secretary who is the departmental head. The PSM Act provides for the recruitment and discipline of officers of the Public Service: Part XIV (ss.50 – 54). 

The PSC is established under the Constitution and it is vested within certain powers and functions, inter alia, the power under s.18 of the PSM Act, to review disciplinary actions taken by departments under Part XIV.

The employment of senior officers on contract in the Public Service is governed by Part XI (Contract Employment) of the PSM Act. Sections 40 – 42 are relevant and they provide:

"40.	Designation of senior management offices.

(1)	The Minister may, pursuant to a directive of the National Executive Council, by notice in the National Gazette, designate an office, other than an office of Departmental Head created under Section 22, as a senior management office and the provisions of this Part shall apply to an office so designated.

(2)	A notice under Subsection (1) shall specify, in relation to each senior management office, whether a person is to be appointed to that office by—
(a)	the Head of State, acting on advice; or
(b)	the Departmental Head of the Department of Personnel Management, and an appointment shall be made in accordance with this Act.

(3)	A person to be appointed to a senior management office shall—
(a)	be an officer of the Public Service; or
(b)	subject to Subsection (4), by virtue of his appointment, become an officer of the Public Service.

(4)	A person referred to in Subsection (3)(b) shall only be appointed if he is eligible for appointment to the Public Service as otherwise required by this Act.

41.	Contracts of employment.

(1)	An officer appointed to a senior management office shall be employed under, and shall hold office in accordance with, the terms and conditions of a contract of employment with the State, made subject to the Salaries and Conditions Monitoring Committee Act 1988.

(2)	A contract of employment under Subsection (1) shall be executed on behalf of the State by—
(a)	in respect of appointees under Section 40(2)(a)—the Head of State;
(b)	in respect of appointees under Section 40(2)(b)—the Departmental Head of the Department of Personnel Management,
and by the appointee.

(3)	Notwithstanding the provisions of this Act relating to discipline of officers, a contract of employment under Subsection (1) shall make specific provision for discipline and an officer employed under a contract of employment under Subsection (1) is exempted from the provisions of Part XIV.

(4)	Notwithstanding the provisions of this Act relating to promotion and appointment, where—
(a)	a contract of employment under Subsection (1) terminates or is terminated and is not subsequently renewed; and
(b)	the appointee under that contract of employment is not re-appointed to another officer under this Act,
his employment in the Public Service is terminated.

(5)	The provisions of this Act shall apply to an officer employed on a contract of employment under this section only in so far as they are not inconsistent with the terms and conditions of the contract of employment.

42.	Employment under contract to constitute service.

Employment under contract under this Part shall constitute service in the Public Service for all purposes."

The Department of Attorney-General (or the Department of Justice) is a department of the National Public Service. There is no question that the management of this departments comes under the PSM Act. The Attorney-General is the Secretary of the department of the Attorney-General. The office of the Attorney-General is established under the A-G Act. The office of the Solicitor-General is established under s.10 of the A-G Act. He is appointed by the Attorney-General under s.11 of the A-G Act for a term of 3 years. His office is sub-ordinate to the office of the Attorney-General. 

There is no question that the office of the Solicitor-General is an office of the Public Service. This is made clear in s.10 of the A-G Act which provides:

"10.	Establishment of office of Solicitor General.

(1)	The Office of Solicitor General of Papua New Guinea is hereby established as an office within the National Public Service.
(2)	The Office of Solicitor-General shall consist of the Solicitor-General and such number of Assistant Solicitors-General as the Attorney-General considers necessary, together with other staff who shall be officers of the National Public Service"

Therefore, the provisions of the PSM Act apply to the Solicitor-General. For this reason, although the appointing authority of the Solicitor-General is the Attorney-General, the Secretary (DPM), and rightly so, is a co-signatory to the Contract entered into between the Attorney-General and the Solicitor-General. 

Mr. Gelu was engaged under a Contract as provided in s.41 of the PSM Act. By virtue of s.42 of the PSM Act, he is an officer of the Public Service. 

The A-G Act is silent on the procedure for dismissal of the Solicitor-General. There is no question that the Solicitor-General is subject to the disciplinary provisions of the PSM Act in Part XIV (ss.50 – 54). The question arises as to what role, if any, the Attorney-General, as the appointing authority, plays in the review process under s.18 of the PSM Act. I will deal with this issue later.

In relation to Contract officers of the Attorney-General’s Department such as the Solicitor-General, I accept Mr Kuman’s submission that pursuant to s.41(3) and (5) of the PSM Act, the discipline procedure under Part XIV of the PSM Act does not apply to a Contract officer. Instead the Contract should make provision for the disciplinary procedure. In the present case, Clause 25 of the Contract makes such provision and it provides:

"25.	Disciplinary Procedures

25.1	Serious disciplinary matters pursuant to Section 20 hereunder, allegedly involving the Senior Officer shall be resolved through the following procedure:
(a)	Where the Senior Officer is alleged to have committed a serious offence under Section 20, the Departmental Head shall suspend the Senior Officer on full pay, and the Departmental Head shall formally charge the Senior Officer in writing with the offence allegedly committed and enable the Senior Officer to reply to such charges prior to submitting a report to the Secretary for the Department of Personnel Management.
(b)	The Senior Officer shall formally respond to the charge in writing to the Departmental Head within 7 days of the charge being laid.
(c)	The Departmental Head shall submit a copy of the charge, the Senior Officer’s formal response, any other relevant evidence, together with recommended action to the Secretary for the Department of Personnel Management who shall having obtained a legal opinion determine whether or not the Contract should be terminated.
(d)	The decision of the Secretary for the Department of Personnel Management shall be final, and the terminated Senior Officer may seek redress through the Papua New Guinea Courts of Law in the event that he considers the termination to have been made unfairly.

25.2	Notwithstanding the above procedure, the Departmental Head may following consultation with the Secretary of the Department of Personnel Management, formally caution or warn the Senior Officer in writing for unsatisfactory performance of duties, where the disciplinary offence is considered by the Departmental Head not to warrant Termination for Cause, under Section 20 herein."

The disciplinary process under the PSM Act and Clause 25 of the Contract is a two-phase process. The first phase of the disciplinary process is the primary disciplinary process which is provided in Part XIV of the PSM Act in respect of non-contract officers and in respect of contract officers, the Contract should provided for it. For instance, in the case of the Solicitor-General, it is Clause 25(1)(a), (b) and (c) of the Contract. The parties agree that Mr. Gelu was dealt with under the primary disciplinary procedure in the Contract and not under Part XIV of the PSM Act. I accept this position as correct and consistent with s.41(3) and (5) of the PSM Act.

The second phase is the review process. There are two avenues for review open to an officer aggrieved by a disciplinary action. The first is an administrative review by the PSC under s.18 of the PSM Act. There is no question that this avenue is available to all officers of the Public Service, including non-contract officers of the Solicitors-General’s office who are dealt with under Part XIV of the PSM Act. 

Section 18 of the PSM Act, as amended by Act No. 25 of 2000 provides:

"18.	Review of Personnel Matters in Relation to Appointment, Selection or Discipline.

(1)	The Commission shall, following a complaint made by an officer to the Commission in accordance with Subsection (2), review a decision on a personnel matter relating to appointment or selection or discipline connected with the National Public Service, where that officer has been affected by the decision.
(2)	A complaint referred to in Subsection (1) shall be—
(a)	in writing; and
(b)	made to the Commission by the officer within 60 days of the date on which the decision was made, but the Chairman may waive the time limit where the delay beyond the period of 60 days was beyond the control of the person seeking to make the complaint; and
(c)	copied to the Departmental Head of the Department of Personnel Management by the officer making the complaint.
(3)	The procedure to be followed in a review under this section is as follows:--
(a)	the Commission shall summons—
(i)	the Departmental Head of the Department of Personnel Management or his delegate; and
(ii)	the Departmental Head of the Department in which the officer is or was employed, or his delegate, to represent that Department; and
(iii)	the officer making the complaint, who may at his request and at his own cost, be represented by an industrial organization of which he is a member, or by a lawyer;
(b)	the persons summonsed under Paragraph (2) shall make themselves available to appear before the Commission within 14 days of the date of summons:
(c)	the Commission shall—
(i)	consider all the facts relative to the matter, including—
(A)	the views of the persons summonsed under Paragraph (a); and
(B)	the personnel management policies of that National Public Service; and
(C)	the cost implications of any decision which it may make; and
(ii)	make a decision to uphold, vary or annul the decision the subject of the complaint; and
(iii)	give immediate notification of its decision to the persons summonsed under Paragraph (a);
(d)	the decision of the Commission under Paragraph (c)(ii)—
(i)	shall be made within 90 days from the date of receipt by the Commission of the complaint, but this period may be extended by the Commission where the reason for the delay is beyond the control of the Commission; and
(ii)	shall become binding after a period of 30 days from the date of the decision."

The second avenue is the Courts. The usual procedure is by application for judicial review under Order 16 of the National Court Rules. A non-contract officer dealt with under Part XIV of the PSM Act would have to exhaust the administrative review process in s.18 of the PSM Act before applying for leave for judicial review: see Order 16 Rule 3(6) of the National Court Rules.

In relation to a contract officer, such as the Solicitor-General, in view of the wording of Clause 25.1(d) of the Contract, the question is whether the officer may invoke the administrative review procedure under s.18 of the PSM Act. Mr. Andrew for the PSC put the same issue in another way – Does Clause 25.1(d) of the Contract oust the jurisdiction of the PSC under s.18 of the PSM Act? 

Mr. Kuman for Mr. Damem submits that Clause 25.1(d) of the Contract expressly says the decision of the Secretary, DPM is final and the Solicitor-General may only seek a review of that decision in the Courts. He cannot seek an administrative review under s.18 of the PSM Act. A similar procedure was employed in David Nelson v NEC (2003) N2440. The complaint made to PSC by Mr. Gelu was therefore in error and invalid. Consequently, the PSC wrongly assumed jurisdiction to "review" Mr. Gelu’s application as it lacked jurisdiction to deal with the matter. Therefore, the whole process before the PSC was invalid and Mr. Damem correctly refused to implement the decision of the PSC.

Mr. Baniyamai for Mr. Gelu submits the PSC has jurisdiction to entertain the complaint under s.18 because this provision empowers the PSC to review any personnel matter following a complaint lodged by an "officer7" of the Public Service. The Solicitor-General, in this case Mr. Gelu, is an officer of the Public Service within the meaning of "officer" in s.1 and s.42 of the PSM Act and s.10 of the A-G Act. Mr. Baniyamai submits the PSC is established by the Constitution and one of its powers is given by s.18 of the PSM Act. The Contract cannot take away that jurisdiction given by statute. He submits Clause 25.1(d) of the Contract does not expressly oust the jurisdiction of the PSC conferred by s.18(1) of the PSM Act and the Constitution. In any case Clause 25.1(d) of the Contract must be read subject to s.191 of the Constitution and s.18 of the PSM Act. 

Mr. Andrew submits disciplinary action taken by the Departmental head is a "personnel matter" which comes within s.18(1) of the PSM Act. The power given expressly by statute cannot be taken away by agreement of the parties; only an Act of Parliament may do so. To the extent that Clause 25.1(d) of the Contract does so, it is inconsistent with s.18(1) of the PSM Act and s.191 of the Constitution, and it must be struck down.

Mr. Andrew also submits s.41(3) and General Order 19.18 (Third edition) expressly exempts contract officers from the primary phase of the disciplinary process under Part XIV of the PSM Act but not the review process under s.18. Therefore, the PSC had jurisdiction to receive Mr. Gelu’s complaint and deal with it. He distinguishes David Nelson’s case from the present case in that Mr. Nelson came straight to court after termination of employment under a Contract entered into under a different statute (Forestry Act).

In my view, the answer to the issue raised is to be found on a proper construction of s.18(1), s.41(3) & (5) and Clause 25.1.(d) of the Contract. The former are statutory provisions and of great importance and they require careful consideration. The latter is an agreement between parties and it does not have the same force as statutory provisions. However, because the Contract is founded on statutory provisions, the terms of the Contract are equally important and the Court must give careful consideration to the terms of the Contract. Those terms must however be reflective of and consistent with the empowering statutory provisions. If the terms of the Contract are inconsistent with the provisions of the empowering statutory provisions, then they may be struck down, to render consistency with the statutory provisions. 

I start with s.18(1) of the PSM Act. Once a complaint is made to the PSC by an officer aggrieved by a decision on a disciplinary matter, the PSC assumes jurisdiction and it is required to "review the decision" in accordance with the procedure set out in Subs (3). It is not contested that Mr. Gelu is an officer of the National Public Service who was affected by DPM to terminate his employment. It is not disputed that he lodged a complaint against the PSC in writing, against his dismissal, as required by Subs (2). It is also not disputed that his dismissal was on disciplinary grounds and he was dealt with under the primary disciplinary procedure under Clause 25.1(a), (b) and (c) of the Contract. In the circumstances, I am satisfied that the actions of Mr. Gelu and the PSC are in accordance with s.18(1) of the PSM Act. The only real issue therefore is whether Clause 25.1(d) of the Contract ousts the jurisdiction of the PSC under s.18 of the PSM Act.

As I stated earlier, there are two phases in the disciplinary process – the primary disciplinary phase which results in the disciplinary action taken and the second phase which is the review process. They are two distinct and independent processes and they should not be mixed up. The PSM Act in fact treats them separately under two separate Parts – s.18 in Part III (Review of Organizational Matter), and ss.50 – 54 in Part XIV (Discipline). Section 41(3) expressly makes reference to "discipline of an officer employed under a Contract of Employment". The disciplinary process under a Contract referred to here must mean the primary disciplinary process, which is the equivalent of Part XIV of the PSM Act. Section 41(3) exempts a Contract Officer from the primary disciplinary process for the reason that the Contract provides for that primary disciplinary process. I do not think Parliament intended to exempt contract officers from the review process under Part III of the PSM Act (s.18). If Parliament intended that a Contract officer should be exempted from application of the review process in s.18, it should have expressly said so in s.41(3) or s.18. Also if Parliament intended that the Contract should also provide for a review process of the primary disciplinary process outside of s.18, it should have expressly said so in s.41(3) or s.18. By not expressly providing so, Parliament intended that Contract officers who are disciplined under the primary disciplinary process set out in the Contract were entitled to invoke the review process under s.18 of the PSM Act. I also consider that Parliament did not intend that a Contract officer who is disciplined under the primary process in Clause 25.1(a)(b) and (c) of the Contract would only resort to the Court to challenge the primary disciplinary decision. 

I consider there is nothing in s.41(3) which authorizes contracting parties to include a review process in the Contract. Section 41(5) cannot be read to confer on contracting parties rights which are not available to them under the PSM Act. For instance, whilst s.41(3) expressly authorizes the Contract to provide for the primary disciplinary process equivalent to Part XIV only, it does not expressly authorize the Contract to create a procedure for review. For this Court to interpret s.41(3) and (5) to permit parties to do so, is to insert a new provision in the Act, which is beyond the powers of this Court.

Clause 25.1(d) of the Contract says the decision of Secretary, DPM is final and the officer "may" seek redress in the Courts. In my view, Clause 25.1(d) does not in any way oust the review jurisdiction of the PSC under s.18 of the PSM Act. All it says is that the decision is final insofar as the initial disciplinary process is concerned. By the use of the word "may" in Clause 25.1(d), the officer is given an option of seeking a judicial review in the Courts. In any case, if Clause 25.1(d) purports to or were intended by the parties to the Contract to oust the review jurisdiction of PSC on disciplinary matters, then to that extent, this Clause is inconsistent with s.18(1) of the PSM Act and cannot be given effect to or enforced by the Courts.

For these reasons, I conclude that Clause 25.1(d) of the Contract is consistent with s.18(1) of the PSM Act in that it does not oust the jurisdiction of PSC to review personnel matters relating to discipline in respect of a Contract officer, who is dealt with under Clause 25.1(a), (b) and (c) of the Contract. Such an officer is entitled to invoke the administrative review jurisdiction of the PSC under s.18 of the PSM Act. Upon lodgment of a complaint, the PSC assumes jurisdiction over the matter and it must conduct an inquiry in accordance with the procedure set out in s.18(3).

I also conclude that pursuant to Clause 25.1(d) of the Contract, the Solicitor-General may seek judicial review of the decision by the Secretary of DPM, in the Courts under Order 16 of the National Court Rules, instead of seeking a review by the PSC but the National Court may require the officer to first exhaust the administrative review process under s.18 of the PSM Act by virtue of Order 16 Rule 3(6) of the National Court Rule. Also see Burns Philp (New Guinea) Ltd –v- Kekedo [1988 – 89] PNGLR 122, and The Independent State of Papua New Guinea –v- Phillip Kapal [1987] PNGLR 417 at 421 – 422.

Applying these principles to the facts of this case, I find that Mr. Gelu’s complaint lodged with the PSC was proper and valid for all purposes and the PSC properly assumed jurisdiction over the complaint dealt with it. The question of whether the PSC complied with the procedure in s.18(3)(a), (b), (c ) in dealing with the complaint is a separate matter.

Issues No. 4 is worded on the basis that the PSC did not follow the procedure prescribed by s.18(3)(a), (b), (c) in that the PSC failed to summons Mr. Gelu and the two (2) department heads to appear before it to be heard on the matter before a decision on the complaint was made. The PSC concedes that the summonsing procedure was not followed. As a result, a "hearing" was not conducted: Allan Pinggha v PSC (2005) N2850. However, Mr. Andrew submits if the decision is quashed on that basis, the matter should be referred back to the PSC for a re-hearing as was suggested in Allan Pinggha’s case or alternatively, the Court should exercise its powers under S.155(3) or (4) of the Constitution to refuse the relief sought. I will deal with the issue of appropriate relief later. But for now, I find that the PSC failed to follow the procedure under s.18(3)(a) – (c) for summonsing the three (3) persons specified in s.18(3)(a) and failed to conduct a "hearing" before the decision was made. As a result, Mr. Damem as well as the Secretary (DPM) and Mr. Gelu were denied an opportunity to be heard on the matter before the PSC made its decision: see Allan Pinggha v PSC (2005) N2850. For this reason, the PSC decision is liable to be quashed, as being invalid and void.

The other breaches of procedure raised under grounds (a)(iii) and (iv) relate to s.18(3)(a)(ii), (c)(iii) and (d)(ii). The parties have not agreed to any issues arising out of these grounds for my determination. I note Mr. Kuman made submissions on them but I consider it not necessary to decide these issues in view of my decision in relation to s.18(3)(a) (b) and (c). However, I will deal with the arguments under s.18(3)(d)(ii) because it is relevant to Questions No. 5 and 7. 

Question No. 5 and 7 are related and can be dealt with together. Mr. Kuman submits that Mr. Damem was not immediately notified of the decision by the PSC as required by s.18(3)(a)(ii) and up to this day, he is yet to receive formal notification of the decision of 23 August 2004. He submits the 30 days runs from the date of notification. Therefore, the decision is not biding on Mr. Damem and he is not obliged to implement the decision.

Mr. Andrew does not address the question of notification but he submits the decision of the PSC is binding after 30 days from the date of decision. He submits if a Departmental head is not happy with the PSC decision, he has a 30 days grace period to institute Court proceedings to challenge the PSC decision. If within the 30 days the PSC decision is not challenged in Court and quashed by the Court, it is binding. Once the 30 days expires, the decision is binding on the Departmental head - he has no other option but to implement the PSC decision forthwith. 

Mr. Baniyamai submits a Departmental head must seek judicial review within 30 days and not after. If an application for judicial review under Order 16 of the National Court Rules is made outside of 30 days, the National Court lacks jurisdiction to deal with the matter. He submits whilst there is no express provision in s.18(3)(d) which restricts or requires the Departmental head concerned to seek a review of the PSC decision within 30 days, this can be inferred from this provision in that he is given this grace period to consider challenging the decision. In the present case, Mr. Damem in his affidavit concedes that his Deputy Secretary received the PSC decision on 10 September 2004. He did not seek judicial review within 30 days. He filed this application well outside the 30 days. Therefore, this Court lacks jurisdiction to deal with this application.

In my view, the requirement to notify the two Departmental heads and the officer affected under s.18(3)(c)(iii) is an integral part of the five-step decision-making process in s.18(3)(a), (b) and (c). The process begins with the "summonsing" of the three specified persons, followed by "attendance before the PSC" of the persons summonsed. A "hearing" is then conducted in which "the views of the persons summonsed" are received. A decision is then made by the PSC. The process ends with "notification" of the decision of the persons summonsed.

A decision made under s.18(3)(c)(i) and (ii) is not complete and cannot take effect until it is immediately communicated to those summonsed. The word "immediate notification" under s.18(3)(c)(iii) means on the same day or shortly after the decision is made, because under s.18(3)(d)(ii), the decision becomes binding as or "from the date of the decision". In my view, the binding effect of the decision, therefore, is conditional upon notification of the decision. The notification must be made to the persons summonsed to appear and heard on the review, under s.18(3)(a) and (b). Notification of the decision through other persons be they their sub-ordinates, servants or agents, (except a person delegated by the Secretary under s.18(3)(a)(ii)) falls short of the mandatory requirements of s.18(3)(c)(iii). There is no question that when that is done, the decision becomes binding by operation of law – by virtue of s.18(3)(d)(ii). Once the decision becomes binding, the Departmental Head is bound to implement the decision of the PSC. He has no choice - he or she must implement the decision. If he or she fails to do so, a person aggrieved by the refusal or failure to implement the PSC decision may apply to the National Court for judicial review under Order 16 of the National Court Rules seeking an order of mandamus. 

Applying these principle to the facts of this case, the evidence is that Mr. Damem was not notified of the decision because he was not summonsed by the PSC to appear to give his views. It also appears the Secretary, DPM and Mr. Gelu were also not summonsed. Mr. Michael Koimo says Mr. Damem was not notified of the decision directly but through the Office of the Secretary of DPM. The evidence is that the decision was conveyed by the Secretary, DPM, to Mr. Damem’s deputy. In my view, this is not in compliance with s.18(3)(c)(iii). I am satisfied that Mr. Damem was not notified of the decision and the decision insofar as it affects him. There is also no evidence to show that he delegated his deputy to receive the decision. Therefore the decision is not binding on him. For that reason, he was entitled to refuse to comply with the PSC decision.

In relation to the purpose of the 30 days grace period, I do not think it is open to read into the provisions of s.18(3)(d)(ii) the interpretation advanced by Mr. Andrew and Mr. Baniyamai. To do so would in effect to inserting a new provision in s.18(3)(d)(ii) which does not exist. This Court has no power to do that.

In relation to question No. 6, it follows from what I have said that the decision of PSC is open to challenge in the National Court, by a Secretary of a Department aggrieved by its decision, either within or after the 30 days, under the judicial review procedure in Order 16 of the National Court Rules. Mr. Andrew in fact concedes that even after expiration of the 30 days, the Departmental head may seek judicial review under Order 16 of the National Court Rules or under s.155(3) and (4) of the Constitution.

The final question is whether the mere fact that the Secretary, DPM accepted the PSC decision and decided to require Mr. Damem to implement the PSC decision meant the PSC decision was binding on Mr. Damem. I do not consider the binding effect of the PSC decision on the "Departmental Head in which the officer is or was employed" in s.18(3)(a)(ii) is dependent on the acceptance of the PSC decision by the Secretary, DPM (s.18(3)(a)(ii)). Further, the position of the Attorney-General is a special position established under the A-G Act. As the appointing authority of the Solicitor-General and also the charging and suspending officer, he must have a direct say on the disciplinary matter concerning the Solicitor-General. It seems to me the decision of the Attorney-General as the only appointing authority of the Solicitor-General under the A-G Act must have the last and final say when it comes to implementing the PSC decision in respect of the Solicitor-General and he must be notified of the decision directly if it is to be binding on him.

For all the foregoing reasons, I quash the decision of the PSC made on 23 August 2004.

In relation to the relief sought, Mr. Damem seeks an order in the nature of certiorari and consequently, declaratory orders that the decision of PSC and the subsequent decision of Secretary, DPM to re-instate Mr. Gelu is invalid. From what I have said so far, an order of Certiorari will have to follow to quash the PSC decision and consequently, the decision of the Secretary, DPM to give effect to the PSC decision. It follows that declaratory orders must be granted declaring those decisions invalid, void and of no effect.

The PSC however seeks a re-hearing of the complaint, this time following proper procedures. A re-hearing is in the discretion of the Court. There are two (2) main considerations. First, as I said in Allan Pinggah, a re-hearing is justified where there is a procedural blunder of a technical nature committed by the decision-maker and not an error on the merits of the case. In the present case, the PSC committed a procedural blunder in not following the procedure prescribed by s.18(3). Mr. Damem did not challenge the PSC decision on the merits and this Court has not made a decision on the merits of the case.

Second, a re-hearing will be ordered if it will serve some useful or real purpose. On the one hand, the Mr. Gelu’s Contract has already expired. He is no longer the Solicitor-General. It seems to me that he has also left the public service. If the matter is re-heard following the correct procedure and a decision made in favour of Mr. Gelu, the PSC would have no powers to require both parties to enter into a new Contract. That is a matter entirely for the Attorney-General and the Secretary, DPM. However, Mr. Gelu will still have a finding of guilt against him on serious offences and he may want to clear his name. A re-hearing will facilitate that opportunity. Therefore, it will serve some real purpose for the matter to be referred back to the PSC for a re-hearing in accordance with the procedure outlined in my decision in Allan Pinggah v PSC.

Mr. Andrew’s submission that this Court exercise its inherent power under s.155(3) and (4) of the Constitution to dismiss the application to save Mr. Gelu embarrassment and do justice to his suffering, is not open. Dismissal of an application is based on lack of proof of the claim pleaded in the action. A successful application, as in this case, can only result in quashing of the decision.

For these reasons, I grant the application. I order that the matter be re-heard by the PSC. I will now hear parties on the question of costs.
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Lawyer for the Plaintiff			 :	Posman Kua & Aisi Lawyers
Lawyer for the First and Second Respondents:	E. Andrew Lawyers
Lawyer for the Third Respondent		 :	Allans Lawyers
Lawyer for the Fourth Respondent		 :	Solicitor General