David v Zurenouc [2007] PGNC 37; N3146 (7 February 2007)

N3146

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 250 OF 2003

BETWEEN:

SAMSON DAVID
Plaintiff

AND:

MANASUPE ZURENOUC
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Lae: Gabi, J
2007: 7 February

ADMINISTRATIVE LAW – Public Services (Management) Act and Public Service General Orders – Section 50 and General Orders 8.35 and 8.38 – Natural Justice – Duty to give reasons – The phrase "in the best interest of the Administration" is meaningless unless detailed explanation or reasons are given to justify the term.

PRACTICE AND PROCEDURE – Public Service General Orders – General Order 8.35 is mandatory – An officer charged must be advised of the decision within 21 days – Failure to do so render the decision null and void.

Cases Cited

Arthur Ageva v Bobby Gaigo & Madaha Resena N552
Ex parte application of Eric Gurupa N856
Kelly Yawip v Commission of Police and the State [1995] PNGLR 93
Niggints v Tokam [1993] PNGLR 66

Counsel

R Uware, for the Plaintiff
E Sihil, for the Defendants

DECISION

7 February, 2007

1. GABI, J: Introduction: The plaintiff was a public servant employed as a Revenue Clerk by the Department of Morobe. On 27 June 2000, he was terminated from the National Public Service.

2. By an Originating Summons filed on 19 May 2003, the plaintiff is seeking an order by way of certiorari to squash the charge and the decision to terminate him and a declaration that the charge and the decision to terminate him are invalid and of no effect. The plaintiff seeks further orders that he be placed back on the payroll without loss of entitlements, that the defendants give effect to the recommendations of the Public Services Commission (hereinafter the "PSC") and damages.

3. The plaintiff relies on his two (2) affidavits dated 19 May 2003 and 2 May 2004 respectively and the affidavit of Russell Uware dated 26 June 2003. The defendants contest the application. They rely on the affidavit of Manasupe Zurenouc dated 15 July 2005.

The Facts

4. On 9 January 1995, the plaintiff commenced employment with the Department of Morobe and was made a permanent officer on 22 January 1996. On 7 March 2000, the plaintiff was charged for absenteeism under section 50 (f) of the Public Services (Management) Act and Public Service General Order 8.36. The charge was served on the plaintiff on 15 March 2000. On 16 March 2000, the plaintiff responded and admitted the charge. On 27 June 2000, the plaintiff received the letter of termination from the Provincial Administrator, who advised him that he was terminated and that his final entitlements will not be paid. On 13 July 2000, the plaintiff applied to the PSC for a review of the decision. On 4 April 2002, the PSC wrote to the Provincial Administrator recommending that the dismissal be revoked and that the plaintiff be reinstated and his lost salaries paid in full. On 29 April 2002, the plaintiff received a letter from the Provincial Administrator advising him that he would not be reinstated. On 28 May 2002, the plaintiff wrote to the Chairman of the PSC advising of the Provincial Administrators refusal to reinstate him. On 17 June 2002, the plaintiff approached the Ombudsman Commission to draw its attention to the recommendations of the PSC and the refusal by the Provincial Administrator to reinstate him. On 24 July 2002, the PSC advised the plaintiff that it had exhausted all its powers under the Public Services (Management) Act and urged him to purse the matter in Court. On 19 August 2002, the Ombudsman Commission also advised the plaintiff to seek judicial review of his termination through the Court.

5. On 12 September 2002, the plaintiff lodged an application for legal aid with the Public Solicitor’s Office in Lae. On 10 October 2002, legal aid was granted. On 12 November 2002, the Public Solicitor wrote to the plaintiff seeking clarification and/or verification of his instructions and the plaintiff responded to the letter on 15 January 2003. The Public Solicitor prepared the documents for judicial review and sent them to the plaintiff on 21 January 2003 for his comments. It is not clear to me from the evidence as to when or whether the Public Solicitor received any comments at all from the plaintiff on the documents. What is however clear on 5 May 2003, is that the Public Solicitor sent to the plaintiff by express mail the final documents with instructions to file and serve on the first defendant. On 19 May 2003, the plaintiff filed this action in the National Court Registry in Lae. On 4 June 2003, the Public Solicitor received the documents from the plaintiff and served copies of the said documents on the Attorney General on 10 June 2003. On 5 November 2003, the Statement in support of the application for judicial review was amended. It was further amended on 18 May 2005.

Grounds

6. The grounds for the review are as follows:

1. The first defendant erred in law by failing to determine the charge and to notify the plaintiff of the decision to terminate within 21 days;

2. The first defendant erred in law and/or acted "ultra vires" the Public Services (Management) Act in that he charged the plaintiff for an offence that does not exist under section 50(f) of the Act;

3. The decision to terminate the plaintiff on 27 June 2000 was made without any reason or sufficient reasons;

4. The delay by the first defendant to inform the plaintiff of his termination was in breach of the principles of natural justice;

5. The first defendant’s decision to terminate was unreasonable in that he took into account "continuous absenteeism without lawful excuse" when the Notice of Charge contained no particulars of the offence of absenteeism alleged to have been committed by the plaintiff;

6. The first defendant’s decision was unreasonable in that he took into account "previous charges in relation to previous performances" when it was not set out as an offence in the Notice of Charge.

Delay

7. The first defendant’s case is that the application should be refused on the basis that the plaintiff has unduly delayed the application for judicial review pursuant to O.16 r.4 of the National Court Rules. He concedes, however, that he may have erred in law. In his affidavit, the first defendant deposed thus:
"while I note that the relevant provisions of the Public Services (Management) Act 1995 (as amended) may not have been complied the plaintiff had unduly delayed to apply for judicial review pursuant to the National Court Rules" (sic) (see affidavit of Manasupe Zurenouc dated 15th July 2005, paragraph 7).

8. Counsel for the first defendant made extensive oral and written submissions on the question of delay. He argued that the application should be refused as it was made well after the four (4) months period and that he has not been able to explain the eight (8) months delay in making the application. Secondly, the granting of the application will have an adverse impact on the good administration of Morobe Provincial Administration and referred me to Arthur Ageva v Bobby Gaigo & Madaha Resena N552 and Ex parte application of Eric Gurupa N856.

9. The plaintiff and his Counsel in their respective affidavits showed the steps that have been taken to seek redress from the PSC and the Court. After been advised by the first defendant that he would not be reinstated on 29 April 2002, the plaintiff sought further assistance from the PSC and the Ombudsman Commission. The PSC and the Ombudsman Commission advised him to purse the matter in Court in July and August 2002 respectively. In September 2002, he applied for legal aid from the Office of the Public Solicitor and the application was granted in October 2002. Between November 2002 and May 2003, the Lawyer for the plaintiff sought instructions and settled the relevant documents for filing and service. The plaintiff and his Lawyer were in two (2) different locations and communicated through correspondence. In fact, the evidence before me is that all correspondence to the plaintiff was sent to him through a William Bual of the Lae Office of the Internal Revenue Commission.

10. The four (4) months period under O.16 r.4 (2) is not mandatory. The Court has discretion in determining whether or not to grant the relief sought. Each case is to be considered on its merit. A number of variables must be considered. Account must be taken of the awareness of the forum and the process and procedure to be adopted in dealing with a grievance, the difficulties experienced in accessing legal service, the remoteness from a Court and the attempt taken to seek redress from the Court in a timely manner. Whilst it is not necessary for the applicant to seek views of the PSC and the Ombudsman Commission on more than one occasion, the plaintiff may be excused for doing so. The applicant is challenging the decision of the Head of the Administration, a very powerful person, who has the backing of the State. With the backing of the State and as a Departmental Head the first defendant has all the resources at his disposal to fight the case. He can afford to dig his heels in and fight to the bitter end as is the case in this instance. To save face he has decided to fight the case despite conceding that he may have erred in law. The task of an employee fighting a case against his Departmental Head is, I believe, a daunting one. The employee needs to be cautious and be sure of his/her legal position before embarking on such a course provided active attempt is made to seek redress from the Court in a timely fashion. I am satisfied that the plaintiff has taken active steps to make the application in a timely manner. I, therefore, reject the first defendant’s arguments on undue delay.

The Public Services Commission

11. Under the Public Services (Management) Act an officer aggrieved by a decision of the Departmental Head has a right to seek a review of that decision by the Public Services Commission. Since 1 June 2002, the decision of the PSC is binding (see section 18(3) (d) (ii)). Prior to that date the PSC only had power to recommend to the Department Head.

12. On 4 April 2002, the PSC advised the first defendant of the results of its investigation and its recommendations. It recommended that the decision to terminate be revoked, that the plaintiff be reinstated to his former substantive level, that he be paid all his entitlements and benefits retrospective to the date of his dismissal, and that he be transferred to another section of the Administration.

13. On 29 April 2002, the first defendant advised the plaintiff that he has received the recommendations of the PSC. He advised that:

"Legal advice available is clear that the Commission can only recommend to me as Head of the Administration, the decision whether or not to reinstate you is in my discretion. In view of the foregoing and in the best interest of the Administration I have decided not to reinstate you." (Sic)

14. On 1 July 2002, the first defendant wrote to the Ombudsman Commission and advised them that he had received the recommendations of the PSC. He said that:

"The PSC finding is only a recommendation. The decision to reinstate or not is in the discretion of the Departmental Head. I have decided not to reinstate him in the best interest of the Administration."

15. The PSC made its recommendations on three (3) grounds: (i) the charge was defective in that the particulars were not provided; (ii) the General Order 8.35 is mandatory and failure to comply with it renders the decision invalid; and (iii) that there was no documentary evidence to substantiate the reasons given for dismissal of the applicant. These are serious reasons worth serious consideration. Despite serious reasons and strong recommendations to revoke the decision, the first defendant refused to exercise his discretion in favour of the plaintiff.

16. The first defendant’s reason "in the best interest of the Administration" is vague and incapable of a precise meaning. It has never been defined judicially. It means different things to different people. However, it has been used as a reason for either dismissal or refusal to exercise discretionary power. I am of the view that the phrase is meaningless unless detailed explanation or reasons are given to justify the term at the time of the decision. Good administration requires the first defendant to give good and proper reasons or explanation for his decision not to reinstate the plaintiff. It is one of the fundamentals of good administration. The reasons or the explanation must be meaningful and sufficient so that the plaintiff is informed and comprehends the decision (see Ombudsman Commission v Peter Yama (2004) SC747). The duty to give reasons is part of our law (see Sch. 2.2 and s. 59 of the Constitution). Where a decision affects substantial interests and the welfare of officers and their families, detailed explanation and reasons must be given by the decision maker at the time of the decision (see Niggints v Tokam [1993] PNGLR 66 and Kelly Yawip v Commission of Police and The State [1995] PNGLR 93). No explanation or detailed reasons have been provided in this case. I find that no good reasons have been given for the exercise of the discretion.

The Charge

17. The charge reads:

"It has been alleged that your absenteeism from place of work have been very high. You have committed an offence within the meaning of Public Service (Management) Act, Section 50 (f) and Public Service General Order 8.36." (Sic)

18. The particulars of the charge have not been stated or provided to the plaintiff to enable him to adequately respond. The charge is vague and too general in that it does not specify the times, the dates or the incidents when the plaintiff is alleged to have been absent from work. The plaintiff does not know what is alleged against him. Without these particulars, the plaintiff can not be expected to reply to the charge or make a detailed explanation to the allegations. I find that the charge is defective.

Failure to give decision within 21 days

19. General Order 8.35 provides:

"The officer must be notified of the decision within 21 days of the Departmental Head receiving the officer’s reply to the charge."(Emphasis added)

20. The charge was served on the plaintiff on 15 March 2000, and he replied to the charge on 16 March 2000. The first defendant notified the plaintiff of his termination on 27 June 2000, which is more than three (3) months. I am of the view that General Order 8.35 is mandatory and a failure to comply with it renders the decision null and void. The first defendant committed an error of law.

21. For all the reasons given in the judgment, I find the termination of the plaintiff null, void and of no effect. I, therefore, make the following orders:

1. The "Notice of Charge" dated 7 March 2000 and the decision of the first defendant dated 27 June 2000 to terminate the plaintiff from the National Public Service are quashed.
   
2. The plaintiff is to be reinstated to his former substantial level forthwith.
   
3. The plaintiff is to be restored and paid all his entitlements and benefits retrospective to the date of his dismissal.
   
4. The defendants pay the plaintiff’s costs to be agreed, if not to be taxed.

___________________________

Public Solicitor: Lawyers for the Plaintiff
MPG Legal Division: Lawyers for the Defendant