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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 199 OF 2013
BETWEEN:
JAMES AMUNA
Plaintiff
AND:
RAPILA MANASE as Acting Administrator of Central
Provincial Government
First Defendant
AND:
CENTRAL PROVINCIAL GOVERNMENT
Second Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
Waigani: Nablu, AJ
2015: 1st July and 13th August
JUDICIAL REVIEW – Refusal by the Provincial Administrator to implement Public Services Commission's Decision – Section 18(3)(d) of the Public Services (Management) Act 1995 – Decision binding if made within 90 days - Evidence – Appropriateness of Relief – Mandamus – Discretionary – Position no longer exists – Unattached officer at time of dismissal – Mandamus would cause administrative hardship and detrimental to good administration of the Provincial Administration – Mandamus refused.
Cases cited:
Ambrose Vakinap v. Thaddeus Kambanei (2004) N3094
Attorney General v. Tetega [2005] N2900
Bau Waulas v. Veronica Jigede (2009) N3781
Dannie Taka v. Dr Samson Amean (2006) N3070
Holee v. Vegogo [2013] N5101
Lawrence Sausau v. Joseph Kumgal (2006) N3253
Mandui v. The Commissioner [1996] PNGLR 187
Mision Asiki v. Manasupe Zurenouc (2005) SC 797
Ombudsman Commission v. Peter Yama (2004) SC 747
Paul Mond v. Honk Kiap (2013) N5356
Tau Kamuta v. David Sode (2006) N3067
Counsel:
N. Gimaia,for the Plaintiff
V. Hampaleke, for the First and Second Defendant
13th August, 2015
1. NABLU, AJ: The plaintiff was granted leave on 23rd April 2013 seeking an order in the nature of mandamus to compel the Acting Provincial Administrator, the first defendant to comply with the Public Services Commission's decision made on 15th April 2009 to reinstate him and pay all his lost salaries and entitlements backdated to the date he was dismissed from the Public Service.
2. The plaintiff was employed as a Community Health Worker with the Central Provincial Government. In 2006 he was dismissed from the Public Service. He appealed to the Public Services Commission. The Public Service Commission after reviewing his personnel matter and finding irregularities in the disciplinary process, quashed the decision of the first defendant and directed that the first defendant reinstate the plaintiff and back pay all his lost salaries and entitlements on 15th April 2009. The plaintiff then engaged his lawyers to write to the first defendant seeking to enforce the decision. The lawyers wrote to the Provincial Administrator on 29th April 2009. On 11th September 2009, the Public Services Commission also wrote to the defendants informing the first defendant that the Public Services Commission's decision was binding. On 2nd March 2012, the plaintiff followed up on his matter and requested for the compliance of the Commission's Decision. To date, the defendants have not responded to the plaintiff.
3. The plaintiff relied on his affidavit filed on 19th April 2013. In response the first and second defendant filed the affidavit of Bala Kapa on 14th June 2014.
4. The plaintiff seeks review of the decision or lack of a decision by the first and second defendant's on the following grounds:
5. There are five legal issues before the Court for determination, they are provided for in the Statement of Agreed and Disputed Facts. They are;
6. The terms and conditions of employment of officers in the Public Service is catered for under the Public Services (Management) Act 1995. It should be noted that this Act of Parliament was repealed and a new law was enacted and came into force in October 2014. However, the applicable law for this case, is the Public Services (Management) Act 1995. The provision which relates to the review of personnel matters is provided for in Section 18 of the Public Services (Management) Act 1995 which states that:
(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) is binding after a period of 30 days from the date of the decision.
7. Since this provision was amended, the National Court has construed Section 18 of the Public Services (Management) Act in a number of cases.
8. Clearly the intent of Parliament was that the departmental head does not have the power to refuse to comply with the Public Services Commission's decision; Ambrose Vakinap v. Thaddeus Kambanei (2004) N3094. If the departmental head is of the view that the decision is unreasonable and so absurd that no lawful authority would arrive at that decision, the departmental heads' remedy lies in judicial review. The departmental head if aggrieved, should apply to the National Court to review the PSC decision.
9. The PSC is a constitutional body whose function interalia, is to review and control the decisions of the executive arm of Government, namely, departmental heads, in relation to the decisions they make with respect to their employees.
10. The wording of Section 18, leaves little or no room for the departmental head to refuse to comply with the PSC decision. But in the case where the departmental head is of the view that the decision of the PSC was erroneous, unlawful or unreasonable, the departmental head must inform the plaintiff of its decision to refuse to comply with the decision and provide sufficient and cogent reasons for refusing to implement the decision; Mision Asiki v. Manasupe Zurenouc (2005) SC 797.
Ground One:
11. The plaintiff through counsel argued that the first defendant failed to comply with the PSC Decision contrary to Section 18 (3)(d)(ii)
of the Public Services (Management) Act. This ground of review is related to the issue one (1) whether Section 18 (3)(d)(ii) of the Public Services (Management) Act is mandatory and is effective after the second defendant failed to seek judicial review of the decision.
12. Mr Gimaia of counsel for the plaintiff submitted that PSC decision of 15th April 2009 became binding on the first and second defendant on 29th April 2009 and that he was bound by the decision. He submitted further that the first defendant did not apply for judicial review therefore the decision is binding, tantamount to a Court order.
13. Mrs Hampaleke of counsel for the first and second defendant submitted that the Public Services Commission's decision is not binding on the first defendant on the ground that the Public Services Commission failed to comply with the mandatory statutory process provided for under Section 18 of the Public Services (Management) Act. The Public Services Commission did not summon the first defendant or his delegate as required by Section 18 (3)(a) and (b) to respond to the plaintiff's complaint.
14. The Commission then proceeded to hear and determine the complaint. The decision was made after three (3) years contrary to Section 18 (3)(d)(i) of the Public Services (Management) Act.
15. Counsel submitted that the failure of the Commission to comply with the statutory process renders the decision flawed and therefore cannot be binding on the first defendant.
16. By operation of law, namely Section 18(3)(d)(ii) of the Public Services (Management) Act. The decision of the Public Services Commission is binding after thirty (30) days. The case authority on point referred to the court is that of Vakinap v. Kambanei (supra) and the recent National Court case of Holee v. Vegogo [2013] N5101, Cannings J described the nature of a PSC Decision as "...a self-executing decision, tantamount to a Court Order."
17. The binding effect of Section 18 (3)(d)(ii) of the Act was also discussed in Attorney General v. Tetega [2005] N2900. The decision must be communicated to the departmental head. After been duly informed of the decision, the departmental head has thirty (30) days within which to implement the decision. If he does not exercise the right to seek review of the decision, then after thirty (30) days the departmental head is bound by the decision.
18. I do not accept the submission by the counsel for the first and second defendants, there is no evidence of any breach of the provisions of the statutory process. The Affidavit of Bala Kapa only deposes to the fact that the Commission made a decision without giving the first and second defendants the opportunity to be heard. This is insufficient to establish that there was a serious breach of the mandatory process. There is also no evidence to support this contention.
19. I also do not accept the submission of the plaintiff that the PSC Decision was binding on the plaintiff on 29th April 2009 when the decision was served on the departmental head.
20. When applying the law to the facts, evidence shows the plaintiff lodged his application for review pursuant to Section 18 on 11th May 2006. The Public Services Commission than exercised their power under Section 18 of the Public Services Act to annul the acting Provincial Administrators decision on 15th April 2009. The decision was made three (3) years and one (1) month after the appeal was lodged.
21. In my view, this was in contravention of Section 18(3)(d)(i) of the Public Services (Management) Act.
22. With the greatest respect, I agree with the views and interpretation of the law, in particular, Section 18(3)(d)(ii) of the Public Services (Management) Act that the PSC decision is binding after thirty (30) days, however, I would go on further to say that because of the binding and mandatory nature of the decision and the Constitutional functions of the PSC, it is incumbent on the PSC to comply with the provisions of Section 18 and the statutory procedure provided by the law.
23. In my view, Section 18(3)(d), must be read in whole. Before the decision is binding, there are conditions which must be satisfied. The first, is that the decision of the PSC must be made within 90 days of the date the complaint was lodged.
24. This is a mandatory requirement of law. However, Section 18(3)(d)(i) of the Public Services (Management) Act provides an exception where the delay is inevitable and beyond the control of the PSC. There must, in my view, evidence provided by the PSC as to the reason the decision could not been made within 90 days. In order for the decision to be binding within 30 days, the PSC is obliged by law, to carry out the review and give a decision within 90 days. If they are not able to comply and make a decision within 90 days, there must be evidence before this Court, why they did not comply. This reason should also be stated in the PSC decision.
25. Parliament's intent in my view, was for these matters be reviewed in a timely manner. The aggrieved officer must have closure of the issues and the departmental head should rectify his decision promptly, if there is a fundamental error of law or breach of procedure identified.
26. Furthermore, if the PSC annuls the decision and directs the departmental head to reinstate the aggrieved officer. Such orders should be made promptly so as to reduce the costs to the department and State in terms of the payment of lost salaries and entitlements.
27. I am of the view, that the legislation intended these decisions to be made within 90 days, inorder for the decision to be binding. The decision was made three (3) years later. In this case, I am of the view the decision is not binding because of the failure of the PSC to make the decision within 90 days.
28. For the foregoing reasons, the first ground of review has not been made out and is dismissed.
Ground Two:
29. In the second ground of review, the plaintiff argues that the first and second defendant's failure to give lawful or plausible
reasons amounts to a denial of natural justice and breach of the principles of natural justice as enshrined in Section 59 of the
Constitution.
30. Mrs Hampaleke conceded that the first and second defendant did not provide a response to the plaintiff following the service of the decision.
31. I find there is no evidence before the Court of any response communicated to the plaintiff. It would appear that the first and second defendant simply ignored the plaintiff.
32. The public authority, making a decision must ensure good, cogent and sufficient reasons must be given for its decision. Even if the law which empowers the decision-maker to make the decision, but does not provide for the decision-maker to give reasons, the decision- maker is still obliged under the Constitution to observe the principles of natural justice to give reasons for its' decision: Ombudsman Commission v. Peter Yama (2004) SC 747.
33. If the departmental head, in this case, the Provincial Administrator refuses to implement the PSC Decision he is obliged to observe the principles of natural justice and provide cogent and sufficient reasons for not complying with the decision; Mision Asiki v. Manasupe Zurenouc (supra).
34. Failure to give sufficient and cogent reasons imply that there is no good reasons and therefore amounts to a denial of natural justice.
35. I am satisfied that there is no evidence before the Court to prove that the first and second defendants gave reasons for failing to comply with the PSC decision. The Provincial Administrator is bound to give good and sufficient reasons, failure to give reasons amounts to a denial of natural justice which they had a statutory duty to comply with. Therefore, the plaintiff has made out this ground of review.
Ground Three:
36. The plaintiff through counsel submitted that the failure of the first defendant to implement the decision according to law and
failing to give reasons for the refusal to comply with the PSC decision renders the decision so unreasonable that no public official
acting in that capacity would have ignored or refused to comply with the decision in the manner the first defendant did.
37. The first and second defendant's counsel did not make any submissions on whether the first defendant's conduct was unreasonable.
38. Based on the evidence before the Court, the plaintiff has made out the third ground of review. The decision was communicated to the first defendant on 29th April 2009. From that time until the filing of the plaintiff's application for judicial review there is no evidence to prove that the first defendant had taken steps to either respond to the plaintiff's enquiries on his reinstatement or file an application to review the PSC decision. It would appear that the first defendant just blatantly ignored the plaintiff.
39. I am satisfied that the decision to refuse to implement the decision is unreasonable on the basis that they failed to give reasons for their refusal and denied the plaintiff natural justice. Therefore the plaintiff has made out the third ground of review.
40. The plaintiff has proven two or three of his grounds of review. The failure of the first defendant to give reasons for refusing to comply with the decision, amounted to a denial of natural justice. Finally, the decision of the first defendant not to implement the decision was unreasonable within the Wednesbury principles of unreasonableness.
What is the appropriate relief?
41. Now that the plaintiff has made out his grounds of review. The next step of judicial review entails the consideration of the appropriate relief to be granted. The grant of relief is discretionary. The fact that an applicant has successfully made out his grounds of review, does not automatically give him the right to the relief sought. The grant of relief is still a matter for the Courts' discretion. Therefore, inorder for the Court to exercise its discretion to grant relief, the onus is on to the applicant to make out his or her case for relief.
42. The relief sought by the plaintiff is three-fold. The plaintiff sought a declaration that the first defendant is bound by the Public Services Commission decision of 15th April 2009. For the reasons stated earlier and the finding that the decision is not binding on the first defendant, due to the PSC's failure to make the decision within 90 days, I refuse those orders.
43. The plaintiff also seeks an order in the nature of mandamus pursuant to Order 16 Rule 1 of the National Court Rules compelling the first defendant to reinstate the plaintiff to his substantive position prior to his termination and to be paid all his lost salaries and entitlements from the date he was put off the payroll which was 22nd December 2004 to the date of reinstatement or judgment.
44. The plaintiff also seeks general damages to be assessed by way of an agreement between the parties or alternatively by way of a trial if negotiation fails.
45. I will deal with the order for a writ of mandamus first.
46. The plaintiff argues that an order for a writ of mandamus should be granted to compel the plaintiff to re-instate the plaintiff to the substantive position he was occupying prior to his termination, or as an unattached officer. If reinstatement is not possible then he should be compensated in damages equivalent to the lost salaries and entitlements up to the date of judgment for unlawful dismissal.
47. The first and second defendants counsel argued that the administrative hardship would be caused to the second defendant if they are ordered to reinstate him. The hardship alluded to is quite involved and therefore requires further examination by the Court. The hardship is that the position which the plaintiff occupied was abolished in 2005. The plaintiff was an unattached officer when he was dismissed, he also did not apply for a position when the restructure was effected in 2005.
48. I am of the view that an order for mandamus is futile. The plaintiff's position does not exist. From the evidence before me, the plaintiff commenced work as a casual community Health worker at Naoro Aid Post, Mt Koiari in Central Province sometimes in 1989. He was confirmed to that position and worked his way up to Community Health Worker located at Hiri District which was a Grade 4 position in 1997. He says he held that substantive position until he was terminated on 27th March 2006. He states that he was put off the government payroll on 24th December 2004.
49. According to the plaintiffs' Affidavit, annexure "A", is a letter from the Central Provincial Administration, advising him that he was appointed to act in the position of CENHDH 007 Gr 4 – Community Health Worker. The letter dated 12th May 1997 was from the acting Provincial Administrator, where it is stated that those whose substantive positions had been abolished during the restructure or reclassified were now unattached officers. They were temporarily appointed to act in those positions indicated. The letter continued on to state that the acting appointment was valid until the results of the final selection. There is no evidence to indicate whether the plaintiff applied for a position in his affidavit.
50. According to the Affidavit by Bala Kapa, an advisor for Human Resources Management Division of the Central Province Administration, the plaintiff was confirmed to the position CENDAH 028 CHW Grade 5, Abau District on 14th July 1998. There were changes to the structure of the Provincial Administration in 1999 for Abau District Health, which rendered the plaintiff an unattached officer.
51. Sometimes in September 2002, allegations were raised against the plaintiff. It was alleged, that he received a second income from the Community Health Workers Association. Furthermore, whilst he was on the government payroll, he was also earning income as the President of the Association. There was no evidence of any formal secondment arrangements or approval by the departmental head. Following investigations into these allegations, the plaintiff was put off the payroll in November 2004.
52. In 2005, the Administration underwent another reorganising exercise. According to Section 33(3) of the Public Services (Management) Act all officers were rendered unattached until the structure was approved, they then had the opportunity to apply for the position of their choice. This practise was also confirmed by the evidence of Bala Kapa.
53. The plaintiff was an unattached officer. There is no evidence that the plaintiff applied for a position. It would appear that he did not apply for a position. Therefore, he was an excess officer and therefore made unattached. On 5th April 2006, the first defendant served a punishment notice on the plaintiff dismissing him from the Public Service. He then appealed to the Public Services Commission who upon considering the matter made a decision on 15th April 2012, three (3) years later. The PSC directed that the acting Provincial Administrator reinstate the plaintiff and back pay his lost salaries and entitlements.
54. In the evidence before me, the plaintiff was an unattached officer at the time of his termination. Unattached officers are not attached to a position. They can be dealt with under the Public Services General Orders. General Order 4.44 defines "unattached officers" as officers who were substantively occupying a position which had been abolished or reclassified.
55. I am satisfied that the position no longer exists, even if it does, the plaintiff has not shown whether he had applied for a position in the 2005 restructure. By virtue of him not applying for a position, I am of the view his employment should have ceased then. Notwithstanding that legal vacuum, the plaintiff was dealt with as an officer.
56. To compel the first defendant to reinstate him in my view, would be inappropriate and it would cause the first defendant substantial hardship and would be detrimental to the good administration of the Central Provincial Administration. In Dannie Taka v. Dr Samson Amean (2006) N3070, Injia DCJ, (as he then was) considered the appropriateness of the relief sought. The facts of that case are similar to the present case. In that case, the applicant sought to compel the acting Provincial Administrator to implement the PSC decision to reinstate him. However, the position he sought to be reinstated to was reclassified and occupied by another person and therefore the position was not vacant. His Honour found that it was not administratively practical or convenient and perhaps legally not open, to reinstate the plaintiff to his former position. His Honour went further on to say that the provincial administrator was the man on the ground and well versed with the day to day administration of the province and he could not be compelled to perform a lawful act insofar as it is administratively feasible, convenient or practicable to do so.
57. The long delay in bringing this matter to Court is also a factor which this Court should take into consideration. The plaintiff only has evidence of following up on three occasions. According to the evidence, the plaintiff was put off the payroll in November 2004. The plaintiff was terminated in 2006. The PSC made the decision in 2009. The plaintiff filed this judicial review four (4) years after the decision in 2013. The prosecution of the application for judicial review was made in 2015, another two (2) years later. That is a total of six (6) years from the date of the decision they are seeking to implement the decision and eleven (11) years from the date of the decision to terminate. In my view, any order to compel the first defendant to implement the decision is futile and it would not be in interest of justice. The plaintiff would be unfairly enriched for not doing any work at all.
58. According to Order 16 Rule 4(1) of the National Court Rules, the Court has the discretion to grant relief where there is undue delay in bringing the application for judicial review. The granting of the relief sought would in my opinion, cause substantial hardship to the Provincial Administration and would be detrimental to the good administration of the Central Provincial Administration.
59. In addition to the delay, I am of the view that the plaintiff comes to this Court with unclean hands. Equity demands that he who comes to equity must come with clean hands (See Tau Kamuta v. David Sode (2006) N3067). According to the evidence of Bala Kapa, the plaintiff was employed or was in receipt of an income as the President of the Community Health Workers Association. There was no secondment arrangements in place to cater for this arrangement. This is contrary to Section 68 of the Public Services (Management) Act. I also find that he was working and holding himself out to be the President during that material time. This is evidenced by his letters which he signs as the National President of the Association (Annexure F of the Affidavit of Bala Kapa and Annexure D of the plaintiffs affidavit). The fact that he was been paid an additional salary whilst he was a public servant is highly improper and he had come to this Court with unclean hands.
60. I am of the view that relief of mandamus sought is inappropriate and therefore I exercise my discretion to refuse the grant of an order for mandamus, to compel the defendant to reinstate the plaintiff.
61. I will however exercise my discretion to order the defendants to pay an ex gratia amount to compensate the plaintiff for been put through the inconvenience, emotional and mental distress of disciplinary process and filing this application. I make this order for the reason that the first defendant's failure to implement the PSC decision or provide an appropriate response resulted in the plaintiff filing this judicial review application.
62. However, this order is limited and that the first and second defendant is to pay the lost salaries from the date he was removed from the payroll on 19th November 2004 until 27th March 2006 the date he was served with the Notice of punishment. The payment will be for the position Grade 5, Community Health Worker.
63. It is clear, that the first defendant should not be compelled to re-instate the plaintiff because it would be detrimental to good administration of the Central Provincial Administration and cause administrative hardship and difficulties.
64. The plaintiff, however argues that damages, in the form of payment for the lost salaries and entitlements for the unlawful termination from November 2004 when he was removed from the government payroll to the date of judgment.
65. The first and second defendants argue in the alternative that if the Court finds in favour of the plaintiff, the damages should be assessed for the period from 2004 to the date of the Restructure in 2005.
66. The plaintiff also seeks relief by way of general damages pursuant to Order 16 Rule 7 of the National Court Rules. He states that the damages should be assessed by way of an agreement between the parties or alternatively by trial.
67. The first and second defendant's counsel submitted that the legal remedy awarded should be beneficial and convenient in the circumstances and should be in the form of a back payment of salaries from the period 19th November 2004 until 2005 when the restructure was in place.
68. According to Order 16 Rule 7 of the National Court Rules, the Court may award damages to the plaintiff where it is satisfied that three (3) requirements have been met;
69. The plaintiff seeks general damages, even though he has satisfied, the first requirement to have pleaded the claim for damages. I am of the view that the claim for general damages is inappropriate. General damages are usually claimed for personal injury cases or breach of contract or statutory duty (see Mandui v. The Commissioner [1996] PNGLR 187). Such claims are brought under a writ of summons and properly pleaded in a statement of claim. In this case, I am not satisfied that the circumstances warrant an award for general damages.
70. In Lawrence Sausau v. Joseph Kumgal (2006) N3253 and Bau Waulas v. Veronica Jigede (2009) N3781 the successful applicants were awarded K3000 and K5000 respectively. Cannings J considered the suffering and inconvenience of the plaintiff greater in Paul Mond v. Honk Kiap (2013) N5356 and therefore, awarded K10,000.00 each to eighteen (18) plaintiffs .
71. In Bau Waulas v.Veronica Jigede, the plaintiff was the Acting Director for Health in the New Ireland Provincial Administration and the damages awarded were for frustration and distress.
72. In Lawrence Sausau v. Kumgal the court awarded damages of K3000 for hardship and stress as a result of being subjected to the disciplinary process.
73. In other judicial review cases, the successful applicants have been awarded damages for frustration, inconvenience and embarrassment between K3000 – K5000. Counsel have not referred a case, where a public official who was unlawfully dismissed was awarded damages for general damages. Furthermore, they have not sought damages for emotional or mental distress as evident from the pleadings. On that basis, in the exercise of my discretion, I refuse the application for general damages.
74. For those reasons, the plaintiff's application for judicial review is granted.
75. I also grant a declaration that the first defendant's refusal to implement the PSC decision and failure to give reasons amounted to a denial of natural justice contrary to Section 59 of the Constitution and is therefore unlawful. The order for mandamus to implement and reinstate the plaintiff to his unattached position is refused, due to the long delay. The Court will however, order the first and second defendant to pay the sum of money as damages equivalent to the lost salaries from 24th November 2004 up to 26th March 2006. The Defendants to pay the plaintiff's costs of and incidental to the proceedings to be taxed if not agreed.
Court Orders:
___________________________________________________________
Liria Lawyers: Plaintiff's Lawyers
In house Counsel Central Provincial Administration Legal Services Division: First and Second Defendant's Lawyers
No Appearance for the Third Defendants
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