Malai v Amani [2015] PGNC 10; N5872 (18 February 2015)

N5872

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1333 OF 2012

BETWEEN:

SIMEON MALAI, OBE
Plaintiff

AND:

MONOVI AMANI, THE ACTING PROVINCIAL ADMINISTRATOR,
NEW IRELAND PROVINCIAL ADMINISTRATION
First Defendant

AND:

NEW IRELAND PROVINCIAL GOVERNMENT
Second Defendant

AND:

JOHN KALI, OBE, SECRETARY,
DEPARTMENT OF PERSONNEL MANAGEMENT
Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Kokopo: Oli, AJ
2014: October 27th
2015: February 18th

CIVIL JURISDICTION - PRACTICE & PROCEDURE – File action for seeking damages for breach of contract of employment – Plaintiff a former Provincial Administrator his contract of employment was terminated upon him reaching a retirement age at 60 years under the Public Service Management Act - Upon termination final pay out was computed on two option entitlements under the Plaintiff Contract of Employment – submitted to the third defendant for approval either one of them for payment to the Plaintiff – The third defendant elected to approve the lesser calculation from the two, not the higher calculation –Plaintiff being aggrieved file action against the defendants for breach of contract of employment – Find no breach as third defendant

DAMAGES– Plaintiff being aggrieved claims that under his specific terms contract of employment stipulated that upon termination of his contract final pay out would be the greater of the two computed final pay out figures – The third defendant approved the lesser of the two calculations as final pay out legal entitlements according to clause 16.10 - The third defendant in exercising his discretional power approved the lesser of the two calculations as final pay out as legal entitlements for the Plaintiff – The Plaintiff's action in misconceived and base on wrong clause 16.13 that does not apply to termination through retirement age at 60 years. The action is dismissed forthwith.

Cases Cited:

Public Employees Association of PNG v National Executive Council [1993] N1163;
Papua New Guinea Banking Corporation (PNGBC) –v- Jefe Tole [2002] SC 694.
Ambrose Vakinap v Thaddeus Kambanei (2004) N3094,
Francis Damien v Jerry Tetaga (2005) N2900
Robin Sam v Peter Tsiamalili (2006) N3072
Leo Nuia –v- The Independent State of Papua New Guinea N1986
Feria v Lange (2009) N3574
Holee & 2 Ors –v- Vegogo & 2 Ors (2012) N5101

Counsels:

Mr Orim Kivu, for the Plaintiff
Ms Elsie Takoboy, for 1s t& 2nd Defendants
State Solicitor General Office - No Appearance for 3rd& 4th Defendants

DECISION

20thFebruary, 2015

1. OLI, AJ: The Plaintiff is the former Provincial Administrator of the New Ireland Province and has claimed Orders by way of a Writ of Summons filed on the 20th December 2012 seeking damages for breach of contract. The Plaintiff is claiming a breach of his employment contract on the basis that he was paid out under the incorrect clause for his Final entitlements. The Plaintiff is now seeking to have the Defendants who include the named First and Second Defendants to pay the balance of his final entitlements pursuant to his Contract of Employment with the Third and Fourth Defendants and damages. The Plaintiff was appointed as the Provincial Administrator by virtue of an employment Contract entered between the Plaintiff and the National Executive Council on the 12thJanuary 2009 for a period of four (4) years which would have ceased on the 12th January 2013. By a letter from the Third Defendant to the Plaintiff dated 5th of December 2011, the Plaintiff was advised that the Plaintiff had reached retirement age and would no longer be eligible to hold office.
   
2. The Human Resource Division of the First and Second Defendants made calculations based on the Employment Contract of the Plaintiff under two options. It then forwarded the calculations to the Department of Personal Management, the Third Defendant who then chose the option which paid under clause 16.10 and finalised and certified one of the two options as the correct option for payment to the Plaintiff and did effect payment. The Plaintiff being aggrieved by being paid under wrong option filed this action and alleges that there was a breach of Contract of Employment by the defendants.
   
3. The First and Second Defendants filed Notice of Intention to Defend on the 04th February 2013 and filed its particularised Defence on the 21st February 2013 to the Plaintiff's claim through its legal division before matter briefed out to Namani Lawyers and Associates. The First and Second Defendants disputed liability for the claimed breach on the basis that the decision to pay the Plaintiff's final entitlements under the option by clause 16.10 was that of the Third and Fourth Defendants alone in accordance with the Contract of Employment between the Plaintiff and the Third and Fourth Defendants.
   
4. The Third and Fourth Defendants filed their Notice of Intention to Defend and Defence on the 13th June 2013. The Third and Fourth Defendants disputed the Plaintiff's claim and in their Defence pleaded that the Plaintiff was paid according to the correct clause pursuant to the terms and conditions of Employment Contract.
   
5. The First and Second Defendants moves an application on the 05th of September 2014 to have them removed as parties and obtain vacant possession of the property that the Plaintiff was in occupation of. On the 12th of September 2014, this Honourable court refused the First and Second Defendants' application to be removed as a party, however granted the orders for vacant possession. The Court stated that "it is an undisputed fact that the First and Second Defendants have in their custody the special knowledge that allow them to translate the working and mechanics of the right application of [the] Plaintiff's final entitlement payout under option one and or option two as per the relevant clauses of the Contract of employment per se between the Plaintiff and the State."
   
6. The Court further ordered that the matter be set down for pre-trial conference for parties to secure a trial date.
   
7. On the 14th October 2014 at pre-trial conference the Court went ahead and set a trial date and ordered that the matter would commence Ex Parte in the absence of the Defendants. During the pre-trial conference no formal directions was given for parties to file additional affidavits, and statement, but require the parties to confirm agreed and disagreed facts as part of the pre-trial preparation. Since, there was no statement of agreed and disputed facts proposed by the parties as to what facts are agreed and what facts are in dispute, I confirm that the following facts according to the First and Second Defendants are put forward during the trial on 27th October 2014, as agreed facts. They are as reflected in the facts below.
   

FACTS

8. The facts in this matter as pleaded by the Plaintiff in his Statement of Claim, but not disputed by defendants are as follows:
   
   1. The Plaintiff Simeon Malai OBE was appointed by the National Executive Council (NEC) as the Provincial Administrator for the New Ireland Provincial Administration for a term of four (4) years tenure in office on the 12th January, 2009.
      
   2. The Plaintiff then signed a Contract of Employment with the State, the Fourth Defendant herein on the 06th May, 2010 for a period of four (4) years commencing on the 12th January, 2009.
      
   3. As per the Contract of Employment executed between the Plaintiff and the Fourth Defendant the contract was due to expire on the 12th January, 2013.
      
   4. It was a condition of the Contract of Employment that made specific referenceas per clause 16.1(g) that subject to the Act and Regulations that one of the grounds on which the National Government could revoke the appointment of the Administrator and hence the Contract was as a result of Early Retirement or Normal Retirement in accordance with the Act, General Orders and Contract.
      
   5. It was also a specific term of the contract under clause 16.13 that:
      

'where it is considered by the NEC on recommendation from the Provincial Executive Council on recommendation for the Public Services Commission to be in the interest of the State in accordance with Regulation 7 of 2003 to revoke the appointment of the Administrator, the NEC may revoke the appointment and terminate the employment and the greater of the following two payments shall be made: (emphasis mine)

(a) payment of salary and allowance accrued to the end of the contract period together with all benefits accrued under the contract in relation to recreation leave and long service leave; or

(b) normal public service retrenchment benefits together with other monies and accrued service related entitlements."

6. It was also a specific terms of the Contract under the following clauses in particular:
   

(a) "16.14 that upon termination of contract, accrued benefits calculated in accordance with the Terms and Conditions, Regulations and General Orders and subject to any penalties herein shall become due and payable to the Administrator.

(b) 16.17 that the Administrator shall suffer no loss of accrued benefits payable in accordance with the Terms and Conditions, including Contract Gratuity, Long Service Leave and benefits payable under any other law in the event of termination hereunder.

(c) 16.18 that payment made to the Administrator under this section of the Contract shall constitute the maximum entitlement payable by the State to the Administrator on termination under all circumstances."

7. On the 28th November, 2011 the New Ireland Provincial Executive Council by resolution appointed Monovi Amani, the First Defendant herein to act as ProvincialAdministrator upon the mandatory retirement of the Plaintiff on the 26th December, 2011.
   
8. On the same date being 28th November, 2011, the Governor, New Ireland Provincial Government wrote a letter to the Minister for Public Service Honourable Bart Philemon, MP advising him of the Plaintiff reaching the compulsory retirement age and requesting that the Department terminate his Contract and commence the process of filling the vacancy. In the same letter the Governor advised of his Provincial Executive Committee's recommendation of Monovi Amani to act as Provincial Administrator.
   
9. On the 15th February, 2012 at its Meeting No. NG 09/2012 the National Executive Council:
   
   • (a) Revoked the appointment of the Plaintiff herein as Administrator for the New Ireland Provincial Administration effective on 27th December, 2011.
     

(b) Appointed Monovi Amani as Acting Provincial Administrator for the New Ireland Provincial Administration for three (3) months whichever came first; and

(b) shall be the administrative head of the staff in the province; and(c) is responsible for the efficient management of administrative services in the province; and

(d) etc....

9. Having established the Provincial Administration and office of a Provincial

Administrator, the funds required to operate the Provincial Administration are given by the National Government to the Provincial Government under Section 91 and 92 of the Organic Law on Provincial and local Level Government through a provincial annual budget. The section 91 of the Organic Law Provincial and local Level Government reads:-

91. Type of Provincial and Local Level Government Grants.

(1) The National Government shall make the following grants available in accordance with the Organic Law to the Provincial and local-level government in the form of-

(e) a provincial and local-level government administration grant; and

(f) provincial and local-level government staffing grant.

(2) The minimum amount of the provincial and local-level government administration grant shall be calculated in accordance with Schedule 2.

(3) The amount of provincial and local-level government staff grant shall be an amount equal to the sum of salaries and allowances and the cost of other conditions of employment as prescribed by an Act of Parliament for the-

(a) Offices of the Provincial and District Administrators as provided for in section 73; and

(b) .........etc.

(4) This section does not limit the right of a provincial government to apply any revenues raised by the provincial government or local-level government to the cost of their staffing.

THE PUBLIC SERVICES (MANAGEMENT) ACT 1995

10. The Public Service (Management) Actis the enabling legislation that may have direct impact in relation to the terms and conditions of a Provincial Administrator appointed under section 73 by the National Executive Council under section 41 of ThePublic Services (Management Act) provides for Contracts of Employment and specify, amongst othersand reads:-
    

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 sub-section (1) shall be executed on behalf of the State by –

(a) in respect of appointees under Section 40(2) (a) – the Head of State and the appointee.

(c) Directed the Secretary, Department of Personnel Management in consultation with the New Ireland Provincial Administration to ensure that Mr. Malai was paid out accordingly.

11. The history of the case reveals that on the 08th August, 2012 the Plaintiff received through his Bank Account K53, 691.00 as his Retirement Benefits calculated under clause 16.10 of his Contract of Employment upon having his Contract of Employment revoked by the National Executive Council upon recommendation from the New Ireland Provincial Executive Council.
    
12. However, on the 20th December, 2012 the Plaintiff gave instructions to his Legal Counsel to file this Writ of Summons claiming the balance of his entitlements as stipulated under his Contract of Employment.
    

Trial conducted by affidavits tendered in Court by Parties.

13. The Plaintiff has filed in support of his case an affidavit to be use during the trial and relies on it as evidence in support of his claim. The Plaintiff made a sworn affidavit on the 13th October 2014 and filed on the 15th October 2014, respectively.
    
14. However, First and Second Defendants in their defence have filed two affidavits in support to be use during the trial and relies on it which are the affidavit evidence of:–
    
    1. Monovi Amani the First Defendant sworn on the 23rd October 2014 and file on the 24th October 2012.
    2. Joe Matura Human Resource Officer of the Second Defendant sworn on the 23rd October 2014 and filed on the 24th October 2014.
       

Plaintiff Evidence

15. The Plaintiff relies on evidence consists of the Affidavit Evidence by himself sworn 13th October, 2014 and filed 15th October, 2014 together with a copy of the copy of the Contract of Employment between himself and fourth defendant entered on behalf by the third defendant.
    

Defendants Evidence.

16. The First and second Defendants have in their defence filed two (2) Affidavit Evidence. These are the Affidavit of Monovi Amani the First Defendant sworn on the 23rd October 2014 and file on the 24th October 2012. And affidavit of Joe Matura sworn 23rd October, 2014 and Filed 24th October, 2014. The Third and Fourth Defendants were represented by the resident Solicitor General's Office but made no appearance during the trial. However, the third defendant made no appearance and therefore has elected or by choice have not deposes and files any affidavit evidence at all in their defence despite being served with the due process.
    

Standard of Proof

17. Since, the matter has proceeded by way of trial by affidavit being tendered into court, the Court reminds itself of the Standard of Proof the Plaintiff is required to discharge in order to prove its case. It is the trite law that the Plaintiff is required to prove his case in the civil case, is on the balance of probabilities that the Defendants' has breached the terms and conditions of Plaintiff's Contract of Employment, when the lesser figure was paid to him, when in fact he should have been paid the higher figure. This, he claim to be the case because he still has the balance of about one (1) year remaining period on his four (4) years tenure in office still remains in the principal contract of employment.
    

ISSUE

18. The pertinent legal issue in this case is:-
    

Whether or not the First and Second Defendants action in calculating and paying out to the Plaintiff under clause 16.10 instead of 16.13 amounted to a breach of the Plaintiff's contract of employment.

LAW

19. The office of the Provincial Administrator is established under the Organic Law on Provincial and Local Level Governments.The office and its functional duties of a Provincial Administrator is established under section 73 of the Organic Law on Provincial and Local Level Governments to head and manage the Administrative System established pursuant to Section 72 of the Organic Law. The functions of a Provincial Administrator therefore are set out under section 74 and includes being Chief Executive Officer of the Provincial Government. Sections 72, 73 and 74 of the Organic Law on Provincial and Local Level Government are set out here below.
    

72. Provincial and Local Level Administrative System.

(1) A provincial and local-level administrative system is hereby established.
(2) A provincial and local-level administrative system shall consist of-

• (a) the administrative institutions consisting of-
  • (i) the offices of Provincial Administrators etc... ...
    

73. Provincial and District Administrators.

(1) Subject to Subsection (4) and (5) there shall be established-

• (a) in each province, an office of Provincial Administrator;
• (b) in each District an office of a District Administrator.
  

(2) All substantive appointments of Provincial Administrators shall be made by the NEC from a list of three (3) persons submitted by the Provincial Executive Council concerned from a list of persons recommended to the PEC by the Public Services Commission following procedures prescribed by or under an Act of Parliament.

(2B) The revocation of Appointments of Provincial Administrators appointed under subsection (2) or (2A) shall be by the National Executive Council, in accordance with a recommendation from the Provincial Executive Council concerned in accordance with a recommendation from the Public Services Commission following procedures prescribed by or under an Act of Parliament.

74. Functions of the Provincial and District Administrator.

(1) The Provincial Administrator of a Province-

(a) shall be the chief executive officer of the Provincial Government and;

(b) ......

(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.

20. Furthermore, when it comes to the terms and conditions of a Provincial Administrator, the Provincial Government does not over looked the relevant provisions of the Public Services (Management) Act. The section 62, in particular of the Public Services (Management) Act provides Terms and Conditions of employment of Provincial Administrators and District Administrators are equivalent to those of National Public Service Department Officers and it reads:-
    

62. Terms and Conditions of employment of Provincial Administrators and District Administrators.

(a) Provincial Administrator; and
(b) District Administrator

Shall be –

(g) an officer of the Public Service and

(h) Subject to the Salaries and Conditions Monitoring Committee Act 1988 employed on terms and conditions determined by the Departmental Head of the Department of Personnel Management after consultation with the Provincial Governor of the Province concerned.

APPLICATION OF LAW TO THE FACTS

21. The Plaintiff in this case is basically seeking to be properly renumerated for wrongful calculation of his final legal entitlements pay out under the wrong clause 16.10 but should be calculated under clause 16.13 (a) & (b), of which he claim to be a breach of Contract of Employment by the fourth and fifth defendants'. The Public Services (Management) Act under section 41(5) is quite clear on the issue in question in that the specific terms of the Contract of Employment ought to take precedence over the other general provisions of the Public Services (Management) Act. This was the general principle enunciated in the case of Leo Nuia –v- The Independent State of Papua New Guinea N1986 where it was held that where there is a contract of employment the conditions of the contract of employment remove the procedures from the public law provisions of the Public Services (Management) Act, and General Orders unless the procedures in those legislations are incorporated in the contact of employment.
    
22. In this case the specific terms of the Plaintiff's Contract of Employment are incorporated and are very clear, in that, in the event of revocation and termination, the Plaintiff claim that he is entitled to higher of the two payments calculations shall be paid; meaning after proper calculation and through the authorised paying processing system.
    
23. Firstly, in relation to the issue as to whether the First and Second Defendants' in paying out under clause 16.10 amounted to a breach of the Plaintiff's contract of employment.The Plaintiff submit, that the proper construction, interpretation and application of the law to the facts as set out, the First and Second Defendants in interpreting the Plaintiff's contract of employment for purposes of calculation breach clauses 16.13(a) & (b), 16.14, 16.17 and 16.18 respectively.
    
24. It is further submitted that clause 16.10 is clearly envisage for an instances where the Provincial Administrator reaches the retirement age at 60 years or on medical grounds and following the procedural protocol is set out under clause 16.11. These processes are by "giving notice of his intention to leave the service, following expiry of a mutually agreed period of notice, or 3 months, the NEC will revoke the appointment on recommendation of the PEC and PSC." The Plaintiff submits that this was not the case in his case.
    
25. The Learned Counsel for Plaintiff submit that the procedure that was followed to remove the Plaintiff was the one set out in clause 16.13, this means that calculations for Plaintiff' legal entitlement benefits must be calculated pursuant to that clause 16.13 (a) & (b) and that is the greater of the two must be paid under clause 16.13 (a) or (b) as per the specific terms and condition of the Contract of Employment per se. Whilst Plaintiff submit that the first option submitted by the First and Second Defendants was done under the wrong clause16.10. I am of the view that it was the lower of the two, but when the second option was submitted together with the calculations under option one (1) was lesser than the second option, that turn out to be obviously higher than the first option. The issue then is, which one of the two final pay out figures was the right one according to the terms and conditions of the Plaintiff Contract of Employment.
    
26. The obvious question is arisen, is why two calculations under two different clauses were done and submitted, is something that has not been explained by the First and Second Defendants nor the learned Counsel Ms Takoboy. However, it is apparent before this court that they themselves were not certain, but went out of their way to prepare two separate final payout figures for the Plaintiff for approval by the third defendant on behalf of the fourth defendant. The State and the third defendants in this action are only a nominal Defendants, however, the first and second Defendants are the main architecture and engineer of the final pay out computed figures under clause 16.10 and clause 16.13 (a) & (b) respectively for the Plaintiff.
    
27. However, during the trial the learned defence counsel Ms. Takoboi was asked by the Court whether she was in a position to account for the reasons why two separate final pay out figures were prepared and why the third defendant approved the lesser amount out of the two, instead of the higher rate of the two. The learned defence counsel kindly inform the court that she was not in a position to address the court on that issue as her clients merely computate the final payout figures, and it was the third defendant, who approves the lower rate. It is unfortunate that the third defendant has not depose an affidavit to verify that issue that the court is now seeking some explanation from the learned counsel. However, to make matters worse the State Solicitors Office is not in attendance to provide some explanation surrounding the issuance of two separate pay out figures for the Plaintiff, if he was in a position to obtained some instruction from the third defendants as Counsel representing the interest of the fourth as the nominal defendant including the third defendants as the State Solicitor General Office is the right office to represent the State interest under Claims By and Against the State Act.
    
28. In this case the Solicitor General Office was not represented due to manpower problem when the resident lawyer who went on study leave during the later part of last year 2014 and I am reliably inform that he will be back in Kokopo in October this year 2015. In the meantime the State interest on matters here at Kokopo has been managed from Solicitor General's Office - Headquarters from Waigani. The Plaintiff's case must be distinguished from the case of Papua New Guinea Banking Corporation (PNGBC) –v- Jeff Tole [2002] SC 694. In Jeff Tole's case the Contract specifically stated that the lesser amount be paid. That is not the case here, in that the Plaintiff's claim that his Contract of the Employment specifically stated the greater of the two would be paid. But I find this legal proposition is inconsistent with the conditions precedent pertains to the two specific clauses that govern the computation of the final entitlements on termination. The issue is whether the termination was as a result of reaching the compulsory retirement age or in the alternative that the termination was the State's prerogative to terminate "in the interest of the State". The final termination entitlements pay out emanate from this two consequences are entirely different and entail different outcomes. For premature termination of Contract of Employment for reasons that "in the interest of State" the final pay out greater of the two computed figures is calculated under clause 16.13 (a) & (b).
    
29. However, premature termination of Contract of Employment for reason of reaching the compulsory retirement age at 60 years is calculated under clause 16.10, the clause does not refer to computed figures higher out of the two. This effectively means that the lower figure of the two is the correct figure. This appears to be the right conclusion because clause 16.10 is silent on the phase "greater of the two" but clause 16.13 (a) & (b) is crystal clear that phrase "greater of the two" is clearly express. I am of the view that the Plaintiff is interpreting the fact that Plaintiff reaching retirement age is sufficient to be class as a premature reason for termination is "in the interest of State" therefore the Plaintiffs' entitlements should be computed under clause 16.13 (a) & (b).
    
30. However, the two respective clauses clearly stated in no uncertain terms the appropriate flow on legal entitlements effect that follows when premature termination is effected under clause 16.10, as a result of reaching the retirement age or on medical grounds or under clause 16.13 (a) & (b) for termination is done "in the interest of State" the remedy for damages is provided under said clause and this is indeed a standalone provision. In this scenario under clause 16.13 (a) & (b) the computation of final pay out figures should comprise of two separated calculated figures, lower and higher range entitlement pay out figures reflecting the Provincial Administrators purported final legal entitlements pay out figures. If this is the case, the third defendant is empowered under clause 16.13 (a) & (b) to use his discretional power and must approve the higher of the two calculated final legal entitlement figures as final legal entitlements for the Provincial Administrator. I am satisfied that this does not apply to premature termination as a result of reaching a compulsory retirement age at 60 years under the Public Service (Management) Act, of which is the case, in this case.
    
31. The main crux of the Plaintiff submission revolves around the proper construction, interpretation and application of the law to the facts of this case, is when the First and Second Defendants in interpreting the Plaintiff's contract of employment for purposes of calculation final entitlements breached clause 16.13 (a) & (b), 16.14, 16.17 and 16.18 of his Contract of Employment. Because the Clause 16.10 is clearly for an instance where the Provincial Administrator retires for age or medical grounds and following the procedures set out in clause 16.11 that is by "giving notice of his intention to leave the service, following expiry of a mutually agreed period of notice, or 3 months, the NEC will revoke the appointment on recommendation of the PEC and PSC." The Plaintiff claims that this was not the case here.
    
32. However, the Plaintiff submits that the procedure that was followed to remove the Plaintiff was the one set out in clause 16.13 meaning calculations for entitlement benefits must be pursuant to that clause and that is the greater of the two 16.13 (a) or (b). The first option submitted by the First and Second Defendants was done under the wrong clause. I find the Plaintiffs' legal argument that second Defendant has use the wrong clause under 16.10 to calculate the Plaintiff final entitlement is misconceived and on the wrong premise. The second option submitted, if it was base under provisions of clause 16.13 (a) & (b) fail to provide two separate calculated final pay out figures as required under the said clause. Even, if this was the case, the substantive reason for premature termination favours the reasons stipulated under clause 16.10 for reaching compulsory retirement age. Therefore, the computed figures approved by the third defendant on the lower of the two is consistent with the reasons for premature termination contract and computed final pay out figures done under clause 16.10 is the proper and the right one according to the terms and conditions of the Contract of Employment. I therefore do not find the action by the first and second defendant in calculating Plaintiffs' final pay out legal entitlements under clause 16.10 is not a breach under the Plaintiffs' Contract of Employment.
    
33. The common sense and logic dictate, within the spirit of the Contract of Employment, that the right clause to be used to calculate the Plaintiffs' termination final payout is essential and imperative, but according to the stipulated terms and conditions of the Contract of Employment. I am satisfied that clause 16.10 provide specifically for retirement age at 60 years and other premature termination such as "in the interest for State" cases is under clause 16.13 (a) & (b) are quite specific and clear. However, the modus operandi explore by the First and third defendants was to invoke notice of premature termination of Contract of Employment before the expiration of the Contract period and effect revocation of appointment, a process akin to clause 16.13 (a) & (b) does not validate the computation of final legal entitlements be calculated under clause 16.13 (a) & (b) where termination and revocation were triggered by reason compulsory retirement age at 60 years under clause 16.10 and not by reasons clearly stipulated under clause 16.13 (a) & (b) of the Contract of Employment.
    
34. Whilst Plaintiff contends that his final entitlement should be calculated under clause 16.13 (a) & (b), but reasons refer to for his premature termination of Contract of Employment, if it was not him reaching the compulsory retirement age at 60 years, I do not think I will have any problem with that. But I still find the Plaintiffs' legal proposition that his premature termination of his Contract of Employment was made "in the interest of the state" would have no weight and misconstrue because his eligibility to continue to serve as a normal Public Servant was extinguished by the very fact of him reaching the compulsory retirement age under the Public Service (Management) Act.
    
35. The Plaintiffs'strong contention that his premature termination of contract of Employment was done "in the interest of the State" go against the facts of the case that the third and fourth defendants need not use their discretional power to terminate Plaintiffs' Contract of Employment for all manner of reasons that revolves around the notion of the catch phrase "in the interest of justice" but not in the case when the Provincial Administrator has reached compulsory retirement age under section 51 of the Public Service (Management) Act. In this case the Head of State acting on advice has sole power of appointment of Department Heads but nonetheless is restricted by s.51 of the Public Service (Management) Act 1986 (as amended) from appointment for a person who has already attained the age of 60 years. The authority and discretion given under s.193 of the Constitution has been restricted, in the matter of age, by the Parliament itself.
    
36. In contrast to the case on foot, where the Court rule that the public servants were not advice of their retirement age and allowed to continue to work and were under paid, is the case of Feria v Lange (2009) N3574 a public servant reached the age of retirement but his employing department breached the procedures under the Public Service General Orders by failing to give him proper notice of his retirement. He kept working for more than a year beyond the age of retirement before being taken off the payroll. He was offered a retirement package but the calculation was not explained to him and he claimed that he was underpaid. He commenced court proceedings and obtained a summary judgment against the defendants. On trial on assessment of unpaid entitlements and damages the Court awarded damages to the plaintiff who claimed 11 categories of unpaid entitlements or damages. He was awarded a total sum of K112, 455.08. This case is quite contrary to the case on foot that the Plaintiff was given notice and revocation of appointment was affected and entitlements computed and paid according to the law.
    
37. In another case of Public Employees Association of PNG v National Executive Council [1993] N1163; the Head of State acting on advice of the National Executive Council, given after consultation with the Public Service Commission appointed Mr. Luke Lucas to be Secretary of the Department of the Attorney-General for a period of four years. The appointment was made pursuant to s.193 (3) of the Constitution and ss.24 and 25 of the Public Services (Management) Act 1986 and formally gazetted the same day. The Plaintiff Union protested the appointment on grounds inter alia that it contravened legal requirements relating to retirement age under the Act and declared Government Policy under General Orders. The State was unmoved by these representations and industrial action followed. The Plaintiff then issued these proceedings. His Honour Justice Sheehan stated that "I am satisfied that while the Head of State acting on advice has sole power of appointment of Department Heads but nonetheless is restricted by s.51 of the Public Service (Management) Act 1986 (as amended) from appointment for a person who has already attained the age of 60 years. The authority and discretion given under s.193 of the Constitution has been restricted, in the matter of age, by the Parliament itself."
    
38. But in the case of Holee & 2 Ors –v- Vegogo& 2 Ors (2012) N5101 the plaintiffs are three former nurses who were required to retire from the Public Service after more than 40 years of service each, upon reaching the retirement age. They disputed the amount of their retirement benefits and being unable to resolve the dispute complained to the Public Services Commission, which inquired into their complaints and made decisions in their favour that required the Chief Executive Officer of the public hospital at which they have been employed to include three additional categories of benefits in their final entitlements. The Chief Executive Officer failed to comply with the decisions so the plaintiffs brought judicial review proceedings seeking a declaration that the decisions of the Public Services Commission were binding, an order in the nature of mandamus compelling the defendants to comply with the PSC decisions and damages. It was held inter alia that "Once the Public Services Commission inquires into complaints of this nature and makes a decision on the matter its decision becomes binding after 30 days... A bind decision is one that must be complied with. It imposes a statutory duty on the person to whom it is directed to comply with it. This has been made clear in a number of decisions of the National Court, in particular Ambrose Vakinap v Thaddeus Kambanei (2004) N3094, Robin Sam v Peter Tsiamalili (2006) N3072 and Francis Damem v Jerry Tetaga (2005) N2900. It is open to the person at whom a PSC decision is directed to apply by judicial review to have the decision quashed (eg Paul Dopsie v Jerry Tetaga (2009) N3722) but unless the decision is set aside or amended or quashed by some lawful means it must be complied with. It is a self-executing decision, tantamount to a court order."
    
39. The above case authority provides some comfort to Plaintiff's claim of wrongful computation of his final legal entitlements pay out under wrong clause. But the case on foot, has distinguish features with the primary facts that are quite in conflict with the legal proposition that Plaintiff relies on, is based on the wrong premise and it is indeed misconceived. That is, the reason for termination the contract is due to him reaching compulsory retirement age and therefore entitlements must therefore be computed under clause 16.10.Whilst, Plaintiff do not dispute his compulsory retirement age, but claim that clause 16.13 (a) & (b) should be used to calculate his final legal entitlements that result in his premature termination of his contract was done and based on the notion that "in the interest of State" when appointing authority is restricted by law under section 51 of the Public Service (Management) Act not exercise any discretional power under section 193 of the Constitution at all. (See Public Employees Association of PNG v National ExecutiveCouncil [1993] N1163) I, therefore reject this legal contention and proposition by the Plaintiff in its entirety.
    

CONCLUSION

40. The Plaintiff does not dispute that his Contract of Employment was prematurely terminated for reasons that he has already reached a compulsory retirement age at 60 years. It is not disputed too, that he was appointed as the Provincial Administrator for New Ireland Province on the 12th January 2009 by the NEC. On the 6th May 2010 the Plaintiff signed a Contract of Employment with the Fourth Defendant for the position of Provincial Administrator to last four (4) years. He was advised through the letter of the 05th December 2011 from the Third Defendant that the Governor of the New Ireland Province had advised that he (the Plaintiff) was up for his compulsory retirement and that he was no longer eligible to hold office all due to him reaching compulsory retirement age.
    
41. However, the Plaintiff claims that his appointment was revoked and employment terminated by NEC on recommendation by the PEC on the subsequent recommendation of the PSC, to be "in the interest of the State" in accordance with Regulation 7 of 2003. The Plaintiff annexed the letter from the third defendant as annexure "E" advising him of his compulsory retirement, is the only documentary evidence on file that came from the third defendant under his signature. This letter clearly stipulates that the Plaintiff was retired from public service on reaching the compulsory retirement age.
    
42. The letter server as a formal notice of termination to Plaintiff from third defendant, is a requirement in line with the Public Services (Management) Act and as such the Plaintiff was formally inform that he was no longer eligible to hold public office. The Plaintiff has not shown in his affidavit or in any other material particular of such evidence that he dispute the revocation of his appointment as Provincial Administrator was not due to him reaching the compulsory retirement age at 60 years. In the absence of such evidence, the Plaintiff claim that his revocation was done"in the interest of the State"cannot be supported with any material evidence before the court that his revocation was done with reasons other than him reaching the compulsory retirement age.
    
43. If, that was the case then invoking the provisions of clause 16.13 (a) & (b) would be proper and legal. It is unfortunate that this was not the case in this case on foot. The court therefore dismissed the action by the Plaintiff forthwith.
    

ORDER

44. The Court accordingly orders that:
    
    1. The action by Plaintiff is dismissed and defendants are discharged forthwith.
    2. The cost in favour of the defendants, if not agreed be taxed.
    3. The time for entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith.

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Kivu & Associates: Lawyer for the Plaintiff
Namani & Associates: Lawyer for the First & Second Defendants