Panie v Daton [2021] PGNC 320; N9060 (11 August 2021)

N9060

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 830 OF 2019

BETWEEN:
FRANCIS PANIE
Plaintiff

AND:
DR. ALOIS DATON ACTING COMMISSIONER GENERAL OF INTERNAL REVENUE COMMISSION
First Defendant

AND:
INTERNAL REVENUE COMMISSION
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2021: 21^st July, 11^th August

PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Substantive Judicial Review – Reconciliation officer – Termination of Employment – right of hearing – opportunity accorded – whether certiorari appropriate– breach of natural Justice Section 59 Constitution – balance Not discharged – Judicial review denied – certiorari denied – Mandamus denied – Motion dismissed – cost follow event.

Cases Cited:

Asiki v Zurenuoc Provincial Administrator [2005] PGSC 27; SC797
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317
Yawip v Commissioner of Police [1995] PGNC 79; N1370

Counsel:

J. Unua, for Plaintiff
G. Wau, for Defendant
RULING

11^th August, 2021

1. MIVIRI, J: This is the Ruling on the plaintiff’s substantive notice of motion of the 11^th December 2019 for Judicial review against the decision of the First defendant of the 22^nd November 2018 in terminating his employment with the second respondent as a reconciliation officer. He seeks certiorari to remove that decision into Court and quash it.
   
2. Secondly an order in the nature of a mandamus requiring the First and Second defendants to reinstate him to his substantive position as reconciliation officer to the second defendant.
   
3. Thirdly he seeks damages for mental distress, anxiety, public humiliation, and financial loss suffered as a result of the termination at the hands of the First Defendant from his employment with the second defendant as reconciliation officer.
   
4. He also seeks costs of the proceedings.
   
5. His motion is supported by his own affidavit sworn of the 17^th February 2020 filed the 19^th February 2020. He was employed by the second defendant for six (6) years. On the 12^th August 2012 he was employed as a reconciliation officer until his termination on the 22^nd November 2018.
   
6. He contends that his version of the facts was never considered in the decision to terminate him by the defendants. That he had never filled out loan application form for that loan, nor that he had defrauded the National Finance Limited. He was the victim and never applied for the K 9, 016.50 that was deposited to his account on the 23^rd February 2018. And subsequently the second defendant failed to properly reason out his termination. That no proper investigation was conducted nor were proper reasons given to terminate him.
   
7. Annexure “A” to the affidavit of the plaintiff is transaction details from account number 6001818676 Francis Panie with the Westpac Bank. It shows the details of the transactions conducted by the account holder the plaintiff, Francis Panie on that account. It is true record kept by the Westpac bank relating. It shows a credit of K 9, 016.50 into his account. That is debited or withdrawn on the 23^rd February 2018. This money was withdrawn with the use of the bank card with the pin that he supplied to Ray Asi from his account on that day.
   
8. Plaintiff was asked to see one Paul Mageu who was Director Policy and Personal Administration regarding a letter of demand from the National Finance Limited of the purported loan of K 9000 that was credited to his Westpac Bank Account 6001818676. Plaintiff told him annexure “B” to his affidavit that he had never applied for the loan. He was asked to prepare a statement confirming. The plaintiff did annexure “C” copy of that Statement. In it plaintiff says; “I am currently attached with Revenue Accounting section as a PGST/NGST Reconciliation Officer with the Finance Administration Division. I have been with the Internal Revenue Commission for the past six years. I was appointed to the position on the 12^th August 2012.
   
9. My duties in my current position include Reconciling 22 provinces GST Trust Accounts in IFMS; Capturing journels in IFMS; Raise transfer advice for Daily, Kokopo Tax Office and Lae Tax Office; Raise transfer advice to BSP to have monthly GST Distributions transferred from 21 PGST Trust Account to their Provincial Operating Accounts; Update spreadsheet per daily collector statements; Raise transfer advices to BSP and BPNG to have funds transferred to Waigani Public Account; Prepare correspondences to BSP and BPNG; Filling.
   
10. Regarding the application, I decline that I NEVER applied for a loan of K 9, 500.00 from the National Finance since beginning of February to date. I did prepare an incomplete application early this year but I didn’t put it through for processing because my net salary was already low. I can also remember Ray Asi asking me for my pin number and bank card. There are also officers who ask for my card and pin number so when he asked, I just gave to him upon his request. The copy of the loan application is illegal as this was done out of my knowledge and jurisdiction.”
    
11. Annexure “D” is titled my responses to statement of Charges under CAO 5-15. It is responses by the plaintiff addressed to the Commissioner General Internal Revenue P. O. Box 777 Port Moresby NCD. “I deny the three charges laid against me as per Notice of Charges CAO: 5-15. I had never taken that initiative nor had the intention or participated in any fraudulent act in collaboration with Ray Asi. The Loan application was prepared and submitted to National Finance by Ray Asi alone without my knowledge and jurisdiction. It had occurred in the first instance where I did fill a loan application form purposely to obtain a loan to contribute to the funeral of a deceased relative. I however realised that my net salary wasn’t sufficient for an additional loan and that I have withdrawn my intention of obtaining the loan from National Finance. The loan application form was then incomplete.
    
12. I instead fill out an application form and withdrew K 800 from my savings account with TISA (refer to my bank Statement). I have experienced situations at separate times where officers had approached me and stated that they were unable to access their funds through ATM due to loss of bank cards (Lost Property). They have also sought my permission where they could transfer funds from their accounts to my account using phone banking system and if they could borrow my bank card to access their funds from my account. (Refer to my bank Statement are transactions showing an officer’s deposits and withdrawals at various shops and ATM in Gerehu and Rainbow.) Because of the understanding and trust I had in this officers. I had handed my card and PIN for them (officers) to withdraw their funds from my account at the ATM.
    
13. Similar situation had occurred with Ray Asi who had approached me to only asked if he could borrow my bank card to access his funds that was already transferred into my account without my consent. Ray Asi had not explained further where the funds were coming from nor stated anything regarding loan application. I had to give him my card and PIN only trusting him to return my card after he had withdrawn his money out from my Account (ATM).
    
14. Responses to Charges. Facts: Count 1: Commits any Fraud. (1) I hereby deny this charge and state the fact that I’ve never participated nor submitted a fraudulent document ( loan application) to Human Resources for K 9, 500.00 and to be obtained from National Finance. Ray Asi had prepared and executed the loan application without my consent.
    
15. Count 2: Is guilty of disgraceful or improper conduct in his/her official capacity or otherwise. (2) I hereby deny this charge and state the fact that I am not guilty of any disgraceful or misconduct to defraud the Finance and Internal Revenue Commission (IRC) under my personal or official capacity. Ray Asi had defraud the National Finance and IRC under his personal or official capacity.
    
16. Count 3: Having taken an Oath of Office or made an affirmation of office, does, or say anything in violation of it. (3) I hereby deny this charge and state the fact that I have taken an oath of the office on 1^st August 2012 and ever since then, I have not conspired with any persons in violation of the oath.
    
17. I further State in conclusion that I’ve denied by stating the facts to three charges in accordance with paragraph 109 of Commission Administration Order 5-15. The fraudulent activity was only brought to my knowledge by Mr Paul Mageu (on 18^th of April 2018) who had call me for further explanation regarding the K 9,500.00 loan from National Finance Limited. I have responded to Paul Mageu that it was a surprise to me as I’ve never submitted a loan application of K 9500.00 and never received/benefitted from the amount stated. This illegal act performed was out of my knowledge and jurisdiction.
    
18. Based on the responses to my charges, stated below are my pleads. (1) Being employed by the IRC is a great opportunity for me to have served the internal Revenue Commission for the last 6 years and had learnt a lot and had always been committed and preformed the duties and responsibilities to the best of my ability and in the best interest of the Commission. I have enjoyed my current employment and always love to maintain my career honestly. (2) I am aware that the Internal Revenue Commission is a leading Government Agency in terms of transparency and has Zero Tolerance policy to fraudulent activities in IRC. I have always been mindful to protect the integrity of this Office and learnt to be ethical, truthful, accountable, open and transparent in all my dealings.
    
19. (3) I would like to sincerely apologise to the management and staff of the Commission for been interrogated on this matter, I promise this does not happen again in future. (4) I would also like to appeal to the Commission for leniency and not to impose harsh penalty such as termination but to allow me to continue my service with the Commission and repay the loan amount which Ray Asi defraud without my consent and also rebuild the relationship between the National Finance and IRC. (5) I am currently the only person in the family that is employed and need the job to sustain my family back at home (ENB) and myself as am renting in the city. Sincerely signed Francis Panie”
    
20. Annexure “E” of the affidavit of the plaintiff is Notice of Punishment under CAO 5-15 addressed to Francis Panie c/- Internal Revenue Commission P. O. Box 777 Port Moresby National Capital District. It is in the following; “TAKE NOTICE that I have considered your reply dated the 07^th November 2018. Further, I have considered the best interest of the Internal Revenue Commission, the relevant laws, all evidence available to me, and the charges which have been laid against you under a notice of charge dated and served upon you on the 05^th November 2018
    
21. I am of the opinion that the following charges outlined in the said Notice of Charge have been sustained: (a) Charge 1-Breach of CAO 5-15 paragraph 26 (h) On the 22^nd day of February 2018, you conspired with one Ray Asi and others with the intention to defraud submitted to the National Finance Limited a personal loan application with false pretence, forged and uttered supporting documents fraudulently obtained from the Internal Revenue Commission, a total of K 9, 500.00 as a result of this loan application was approved against your name, deposited into your account bearing the account number 6001818676 held at Westpac Bank, withdrawn and applied to your use and the use of Ray Asi and others.
    
22. Charge 2-Breach of CAO 5-15 paragraph 26 (i); Your actions with Ray Asi and others in fraudulently obtaining supporting documents from the internal Revenue Commission (IRC), then uttering and manipulating those documents and subsequently defrauding the said National Finance Limited during the discharge of your official duties as an employee of the IRC amounts to a disgraceful and improper conduct.
    
23. Charge 3-Breach of CAO 5-15 paragraph 26 (j); you violated the oath you took on the 1^st day of August 2012 when you commenced employment with the IRC, to well and truly serve the Independent State of Papua New Guinea. Thereby by virtue of the powers and authority conferred upon me, I impose the following punishment upon you;
    
24. Punishment: 1. Termination from the Internal Revenue Commission forthwith. And I hereby notify you that you have a right to a review of my decision by a court of competent jurisdiction. Dated this 22^nd day of November 2018. Alois Daton Acting Commissioner General of Internal Revenue.
    
25. Delivery of the notice of Punishment. I certify that I have served the above-named officer with the notice indicated. Kila Pou date is 22^nd November 2018 and signed.”
    
26. Annexure “F” is the referral of the complaint to the Police who acknowledge receipt of the complaint.
    
27. In this regard the next affidavit relevant is that of Paul Mageu sworn of the 14^th July 2020 dated the 15^th July 2020. He is the director of the Second Respondent Policy and Personal Administration in the Human Resources Division. Sometimes in May 2018 they received twenty-three (23) demand letters from the Pacific Legal Group Lawyers who were acting on instructions of National Finance Limited. They were alerted to ascertain why automatic deductions were not being automated for personal loans obtained by a number of IRC officers.
    
28. The investigations that they conducted confirmed that the attachments to the loans obtained by the twenty-three (23) officers were falsified forged and manufactured outside the Alesco Payroll system, therefore there was no salary deductions registered in the payroll system for all 23 officers. And out of the 23 officers that applied for the personal loans was the plaintiff, Francis Panie. The investigations further revealed that an officer Ray Asi was alleged to have been at the center of the fraudulent activity. He was charged and terminated.
    
29. The next affidavit relevant is of Teko Naomy sworn of the 14^th July 2020 filed the 15^th July 2020. He is employed by the second defendant as Assistant Commissioner for Internal Audit & Investigations of the IRC. The division he looks after is responsible for investigating the misconduct by the officers of the IRC. And the procedures followed are in the Commission Administrative Orders 5-15 Discipline (CAO 5-15). Investigations are started against an officer when complaint is received against that officer. In May 2018 formal referral was made from the Human Resources Division that Francis Panie and twenty-two (22) others were involved in a scheme to defraud the National Finance Limited. Separate Investigations were conducted into each officer named. And copies of the Statements obtained in that investigations of seven officers are annexures, A1, A2, A3, A4, A5, A6, and A7.
    
30. Record of interview was conducted with the Plaintiff on the 03^rd September 2018 in respect of the Complaint lodged by the National Finance Limited. On the 05^th November 2018 the First Defendant laid administrative charges against the applicant after the investigations into serious allegations of impropriety against the applicant in relation to the complaint. On the 07^th November 2018 the applicant replied to the administrative charges laid against him. On the 22^nd November 2018 the first defendant exercised his power under the Internal Revenue Commission Act 2014 and terminated the applicant from employment after finding him guilty of the administrative charges against him. Annexure “B” is a copy of the investigation report against the applicant. Mr Ray Asi was identified also and terminated.
    
31. What is depicted out by the evidence, that I have tediously set out above, is that there is no breach of procedure in the way that the plaintiff was eventually terminated. The evidence shows clear adherence to the law and the dictate of the law. The allegations made are investigated and uncovered so that the plaintiff is identified out of the twenty-three (23) other officers. He is singled out by the evidence that connects him to the allegation, his account number at the Westpac bank 6001818676 his pin number to access the account together with Ray Asi. There is no independent evidence that sets him out as not acting in concert with Ray Asi. He does not draw immediate attention of the use that is made of his account by Ray Asi. K 9, 500.00 is deposited in his account and K 9000.00 is almost immediately withdrawn. The matter is unearthed by investigations and not at the discretion of the plaintiff.
    
32. And in so doing he is raised as to what the allegation is against him. He is given opportunity to respond to the allegations and the response is not determined with innocence, but with guilt in respect. And he is accordingly penalised with termination as a result. The explicit evidence particularized leaves no determination open in law other than, that all manner of procedure by law were accorded him to arrive at the ultimate of termination. He has not produced evidence that would sway otherwise than what was determined initially by the defendants. The decision is sound in law and has not breached procedure as argued. This ground is without merit in the light of all the evidence set out above.
    
33. Because the law is clear from by the facts displayed out by the evidence that there is no breach compatible with Asiki v Zurenuoc Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005) or Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). Because judicial review is restrictive and unless there is error of law in the procedure can it sustain in favour of the plaintiff, Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008). That is not the case for the plaintiff in the materials that he has pursued here. Every detail of the evidence set out above gives in all material particulars effect to section 59 of the Constitution. This is a seasoned Department of Government fundamental to good governance, that would not derail public servants that are performing to run so that Papua New Guinea is served very well. The CAO 5-15 is not a paper document but is based on the law, and that is heeded to in all material respects. The evidence that I have meticulously set out above display that fact, discharging the balance of adherence rather than non-adherence. There has been the minimum discharged of being duty bound to give effect to act fairly and to be seen to act fairly. I am not convinced that the balance is in favour of the plaintiff by the evidence set out above.
    
34. He does reconciliation as part of his duties in IRC, yet he is not drawn to the fact that it does see well to have another officer use one’s card with the pin and access disclosed to that officer. The security of the Account is breached when the pin is accessed as is the case here. And it is with the consent of the account holder plaintiff. His conduct show this out explicitly. His background by this experience of 6 years in that department does not alert him to the fact that what is deposed to be by Ray Asi to him does not add out. That fraud is imminent in handing over one’s private bank card, not of the office, to another so that money is deposited there to be accessed by the officer. What is reasonable from the evidence set out above, and which the defendants found is clear from the evidence not without. The decision is not unreasonable within Wednesbury. Rather it is consistent with Wednesbury and it is the decision that given the facts this court would have made against same findings. Accordingly, this ground is without merit in favour of the plaintiff. It is dismissed forthwith.
    
35. The remedies pleaded would not parallel the evidence set out above. Certiorari does not lie including mandamus because there is depicted consistent reasonableness in the actions of the defendants. There is no unreasonableness portrayed by the evidence set out above. It is clear all within reason has been accorded the plaintiff. He simply has not derailed the evidence set out above. They foretell compliance and well-reasoned decision leading to what is evident by the evidence and the facts, termination of the plaintiff. Which is clear consistency with Yawip v Commissioner of Police [1995] PGNC 79; N1370 (14 September 1995) and leaves no room to fit what the plaintiff contends against. This ground is not made out and fails.
    
36. Judicial review has not been made out by the plaintiff on the evidence relied. The motion is dismissed with costs forthwith.
    
37. The formal orders of the Court are:
    
    • (i) Judicial Review is not made out.
    • (ii) The notice of motion is dismissed forthwith
    • (iii) The cost of the proceedings follows the event if not agreed to be taxed.
      

Orders Accordingly.

__________________________________________________________________

Office of the Public Solicitor: Lawyer for the Plaintiff/Applicant

In house Lawyers IRC: Lawyer for the Defendants