Hol v Ila'ava [2021] PGNC 500; N9271 (9 November 2021)

N9271

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 27 OF 2018

BETWEEN:
JAMES WANDIP HOL
Plaintiff

AND:
DR VELE PAT ILA’AVA IN HIS CAPACITY AS SECRETARY FOR THE DEPARTMENT OF AGRICULTURE AND LIVESTOCK
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2021: 05^th November

PRACTICE & PROCEDURE – Originating Summons – Notice of Motion – Public Services Commission Decision – Reinstatement of Plaintiff – Section 18 (6) (b) Public Service (Management) Act 2014 – Whether Mandamus Lies – No Cogent Credible Reason Why Non-Compliance – Lapse of 30 Days – PSC Decision Not Implemented – Force of Law – Mandamus Granted – Cost follow Event.

Cases Cited:

Attorney General v Tetaga, Chairman Public Service Commission [2005] PGNC 57; N2900

Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797

Hasifangu v Manludu [2021] PGNC 226; N7953

Palaso v Kereme [2017] PGNC 231; N6816
Counsel:

J. Napu, for Plaintiff
J. T. Bakaman, for the State

RULING

09^th November, 2021

1. MIVIRI, J: This is the ruling on the Notice of Motion of 13^th February 2018 where the plaintiff seeks mandamus pursuant to order 16 Rule 1 of the National Court Rules to compel the defendants to reinstate him to his substantive position within the Department of Agriculture and Livestock, without loss of Salaries and entitlements pursuant to the Public Service Commission decision of the 04^th August 2015, and section 18 (6) (b) of the Public Services (Management) Act 2014.
   
2. Leave was granted on the 30^th July 2018. The plaintiff was employed by a contract of Employment by the Department of Agriculture and Livestock as chief Accountant until his dismissal from that Department and the National Public Service. He was charged, suspended and terminated by the First Defendant. He applied for review of Personal Matter before the Public Service Commission, who nullified the decision initially of the Department of Agriculture and Livestock. And ordered his reinstatement to his substantive position there with all his loss of salaries and contractual entitlements to be paid retrospectively. That decision was handed down on the 04^th August 2015. And it was specifically made to the Department of Agriculture and Livestock to the First Defendant that the decision would be legally binding after 30 days under section 18 (6) (b) of the Public Service Management Act upon the Defendants, if not reviewed within 30 days. The defendants did not review the decision or challenge it after the lapse of 30 days. And the effect was that it was binding upon them by that section and was to be implemented. It has not been implemented despite notice of the same. He now seeks that it be implemented by mandamus upon the defendants.
   
3. That is the defendants are duty bound by section 18 (6) (b) of the Public Service Management Act to implement that decision outstanding of the PSC. Because the First Defendant was informed of the Public Service Commission’s decision since the date of the decision by the Public Service Commission, and also the Plaintiff through a letter dated the 17^th September 2015, but the Defendants did not reply to date, nor sought review of the decision.
   
4. What it meant was that the language of section 18 (6) (b) of the Public Services (Management) Act 2014 is the binding effect of that decision of the 04^th August 2015 by the PSC upon the defendants to implement if they did not do so within the 30 days after being informed. Because it is binding after a period of 30 days from the date of the decision. Practically the 30^th day after the decision had lapsed without review filed against it or challenge made against it by the defendants. The decision of PSC now had the force of Law for it to be implemented without failure by the defendants. It having stemmed from three Constitutional Office holders: Sections 190 & 191 Constitution. That decision is not negotiable with the defendants after the lapse of the 30 days by section 18 (6) (b) of the PSMA if they have failed to either take it to review or judicial review: Attorney General v Tetaga, Chairman Public Service Commission [2005] PGNC 57; N2900 (2 September 2005).
   
5. The evidence relied by the State defendants of the affidavit of Francis Daink sworn of the 16^th July 2018, that of the Plaintiff sworn firstly of the 22^nd July 2018 filed the 24^th January 2018 and supplementary of the 30^th May 2018, do not sustain the course of the defendants. They do not move the case of the defendants so as to dismantle the contention of the plaintiff.
   
6. Even the arguments advanced by the State defendants, that the grant of mandamus would be detrimental to good administration, because the Plaintiff took almost three years to seek this relief now sought. And the Department of Agriculture and Livestock has since advertised the subject position on the 23^rd February 2015. Applicants to it have been considered and now occupying the subject position. That the appropriate remedy for the plaintiff is to seek damages for breach of Contract and not mandamus as he seeks.
   
7. Further his contract of employment was made effective as of the 1^st June 2012 and would have lapsed on the 1^st January 2015. The decision by the PSC was made on the 04^th August 2015 eight (8) months after his contract of employment had lapsed. And notification of new appointment to the said position was made on the 09^th August 2015 after due process.
   
8. The problem posed by these arguments of the defendants is that it was not immediately reviewed before Court there and then, even before the lapse of the 30 days set out by section 18 (6) (b) of the Act. The arguments do not change the course of the matter because the language is definite, it is binding after lapse of 30 days. And this is 09^th November 2021. The decision of the Public Service Commission was made on the 04^th August 2015 some 06 years from todays date and no implementation of that decision was undertaken by the defendants since notification was made to them on the 17^th September 2015. Clearly the defendants have defied the law without challenge to it within the 30 days after the 04^th August 2015. Their hands are tied by section 18 (6) (b) of that Act. They must give effect to that decision immediately. And this is clear from Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005).
   
9. The facts of that case are consistent with the facts and the law applicable here. It is binding upon the defendants as demonstrated quite plainly in Hasifangu v Manludu [2021] PGNC 226; N7953 (13 February 2021). Consequently, it would be square with the facts to grant the relief sought in the Notice of motion filed pursuant to Order 16 Rule 1 of the National Court Rules. In particular to grant and order mandamus that the defendants comply forthwith with the decision of the PSC which ordered his reinstatement to his substantive position there with all his loss of salaries and contractual entitlements to be paid retrospectively. It would not be out of the ordinary to order that if the previous position of the plaintiff is now occupied, he be reinstated to a position equivalent to his said position with corresponding grade in the public Service: Palaso v Kereme [2017] PGNC 231; N6816 (27 February 2017).
   
10. The aggregate is that the contention by the Defendants against the Plaintiff’s motion does not derail it. It is granted in the terms as he has pleaded in that notice of motion. The Statement pursuant to Order 16 Rule 3 (2) of the Rules of Court seeks apart from Mandamus, pursuant to Order 16 Rule 7 of the Rules, general damages to be assessed by way of agreement between the parties, or alternatively by way of trial through pleadings if negotiation fails. And this is borne out by the terms of the Notice of Motion. Clearly proper basis has been established for the claim for damages: Hasifangu (supra). Here I do not make orders in the nature of a declaration as that has been pleaded, but not argued by the parties. No material has been advanced. Hence, I make no determination pertaining. But the law is plain and clear that section 18 (6) (b) of the Public Service Management Act 2014 has the force of law if not implemented after the expiry of 30 days. That is the case here by the evidence and facts. The aggregate is the plaintiff has discharged the onus and is accordingly granted his motion.
    
11. Accordingly, the formal orders of the Court are:
    
    • (i) Mandamus lies and is granted the Plaintiff pursuant to Order 16 Rule 1 of the National Court Rules, the defendants are compelled to reinstate the Plaintiff to his substantive position or a position similar in grade and rank within the Department of Agriculture and Livestock without loss of salaries and entitlements pursuant to the Public Service Commission decision dated the 04^th August 2015 and section 18 (6) (b) of the Public Service (Management) Act 2014.
      
    • (ii) Further pursuant to Order 16 Rule 7 of the National Court Rules leave is granted the Plaintiff to file and serve a Statement of Claim on the defendants, to plead in particular terms, general damages suffered by the plaintiff and the Defendants shall file a defence, and the parties shall proceed to trial by way of pleadings if not agreed on terms.
      
    • (iii) Costs will follow the event forthwith.

Orders Accordingly.

__________________________________________________________________

Napu & Company Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for First & Second Defendants