Konia v Public Service Commission [2015] SBHC 88; HCSI-CC 493 of 2011 (15 October 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 493 of 2011

BETWEEN:

MICHAEL KONIA
Claimant

AND:

PUBLIC SERVICE COMMISSION
Defendant

Date of Hearing: 14th August 2015
Date of Judgment: 16th October 2015

Mr Iroga for the Claimant
Mr J. Muria (J) and Ms L. Finangalofo for the Defendant

DECISION ON CHAPTER 15 PRE TRIAL CONFERENCE

Faukona PJ: A claim for judicial review was filed on 15th May 2013. The claim seeks a quashing order, two declaration orders and four mandatory orders including interest of 5% per annum and costs.

2. The Claimant was formally appointed as a Public Officer by letter dated 12th November 2007 by the Ministry of Public Service. He was appointed as Chief Executive Officer for the National Judiciary on probation for six months. Upon appointment, he signed a contract of service with the Defendant.

3. The Defendant is a body established under Section 115 of the National Constitution and has powers to make appointments to public offices, remove and to exercise disciplinary control over public officers pursuant to Section 116 (1) of the Constitution.

4. Preliminary to hearing of the substantive claim for judicial review, the Court has to call for a pre-trial conference pursuant to Rule 15.3.16 of the Solomon Islands Court Civil Procedure Rules 2007. At the Conference the Court will consider four matters or requirements under R 15.3.18. The four requirements are significant and should the Court is not satisfied on any one point not being established by the Claimant, then the Court will not or refuse to hear the claim.

Arguable Case.

5. From Mr Muria (J)'s submissions, the only issue subject to debate and argument is requirement (a) which is in respect of arguable case. The other three requirements are conceded. Nevertheless, I noted that over the past four years appointments had been made to the post previously held by the Claimant and other posts of similar nature in the Public Service establishment.

6. Counsel advocate for the Claimant addressed what is an arguable case in the context of the Claimant's case. He submits, the overall reason is that the Claimant was not afforded right to be heard after being terminated. In fact the Claimant was terminated by a letter dated 10th June 2009 from the Ministry of Public Service, of which he received on 16th of June 2009.

7. On 17th June 2009 the Claimant appealed against his termination per his letter to the Public Service Commission. In his letter he stated the reasons why his termination was unlawful.

8. On 3rd July 2009 the Public Service Commission responded and advised that they did not entertain his appeal instead was advised to file a claim in the Court, (the High Court).

9. The issue of right to be heard touch on the crevices of rights of an individual as protected by the National Constitution, at the same time upholds the common law standard of fair hearing or rule of natural justice.

10. Being not afforded the right to be heard is a breach of the protective rights of the Claimant as advocated by the Constitution and rule of natural justice.

11. A proper approach to the issue is to examine the status of the Claimant as an employee of the Crown. His appointment was done on probational basis of which he accepted, Chapter B Section 2 of the Solomon Islands Public Service General Orders (or GO).

12. As an Officer on probation appointment, the relevant Permanent Secretary ought to ensure he is well managed, see GO B, 2, 203. It is expected with clear implication that the Officer may count upon (anticipate) being confirmed and admitted to permanent appointment. However, his appointment remains conditional upon adhering to work ethics, values of Public Service and carrying out responsibilities which is acceptable to management.

13. GO B, 2, 204 outlines that every probationary Officer has a specified supervisor or manager who is assigned for the period to work closely with, provide on the job training, advice and timely feed back to the probation officer, provided leadership and ensure any opportunities for improvement are identified and supported.

14. The Claimant in this case denies receiving any verbal or written reminder or warning regarding his work performance or conduct, or any adverse report, so that he would guide against any such conduct. The Claimant in fact is reiterating the importance of GO B, 2, 207 which vested upon the responsible officer, concerning any adverse comments, report on assessment, or the performance of the probationer which falls below average, be brought to the attention of the probation officer in writing. That may not be so, because its necessity is not obligatory pursuant to the second part of the provision which vested discretion upon the responsible officer. If he thinks necessary to address the probationer and give him advice of which might assist acquire necessary standard of conduct, or performance, he may do so. But not necessarily expected to do so by mandatory requirement but in a discretionary fashion. If he thinks it is not appropriate, then it is not necessary and obligatory to convey any adverse comment to the probationer.

15. A supervisor by virtue of GO B, 2, 204 is an Officer who works closely with the probationer, who advices and timely feed back to the probation Officer. The Permanent Secretary merely obtains report from the supervisor and act upon where necessary.

16. In this case the supervisor for administrative officer is His Lordship the Chief Justice. On paragraph 2 of the letter by the Permanent Secretary for Ministry of Justice and legal Affairs plainly stated that the recommendation for termination and the report was compiled by the Acting Registrar of the High court. The report incorporates inputs, and observations and assessment from the Chief Justice, Judges and the Chief Magistrate. Most important was an input from the Chief Justice who was a supervisor. In that instance inference can be drawn from the paragraph that the supervisor had verily delegated to the Acting Registrar of the High Court the responsibility to compile the report. Therefore, it would be out of good sense to say that the Acting Registrar of the High Court has no power to recommend termination. In reality the decision to recommend termination was a collective one, and most importantly from the Chief Justice who was the supervisory officer who was practically involved. The Acting Registrar of the High Court was merely a conduit utilised as a conveying agent to dispatch to the Permanent secretary the report and the recommendations. Perceivably, it was not a task which the Acting Registrar did it by his own accord. From facts, it appears eminent that the Acting Registrar was delegated with function to compile the report and sent the recommendation for termination to the Permanent Secretary. That was all he did and nothing more.

17. In reference to the ground for termination the Permanent Secretary's letter dated 25th February 2009, paragraph 5, had stated plainly that Mr Konia(Claimant) has not demonstrated the capabilities of a competent Chief Executive Officer and has struggled to demonstrate the capacity to progressively develop his performance despite intensive and focussed support, training and mentoring. With a clear paradigm, I do not seem to see any denial that no reason for termination was disclosed. One may not, but it is no doubt the Claimant would have appeared to have sighted the reason for termination but could have denied it for his own benefit.

18. With respect to the issue of natural justice or right to be heard, Regulation 14 of the Public Service Commission Regulation 1998 provides that, should a public officer aggrieved of the decision taken by the Commission may appeal to the Commission. Once an appeal was filed, the aggrieved Public Officer's voice is heard automatically. What is left for the Public Service Commission is to decide on the appeal. However, regulation 14 gives a choice to the aggrieved party, whether to appeal the decision or not. Nothing prescribed in the General Orders, Regulation or any law will deprive the aggrieved party from filing a claim for judicial review in the High Court. If he cannot be heard by the Public Service Commission by virtue of the letter by the Secretary dated 3rd July 2009, it does not mean it accommodates a valid ground to argue in Court to grant the order sought, because the Commission had chosen not to hear the appeal. This Court had accepted the right of the Claimant to be heard. It is not necessary, in my view, to muscle out an issue which the Commission decided not to hear. Virtually the Claimant is not barred at all to access to Court to be heard.

19. On another note, it would be viewed as technically improper for the Commission to decide an appeal against its own decision. The letter by the Secretary for Public Service Commission on 3rd July 2009, paragraph 2, was an attempt to stress the point. In any event the Claimant had taken a proper course and step to come to Court to reinforce his grievances, in which this Court now decides on its merit.

20. On the question whether a mandatory order be sought against the Crown, Mr Muria (J) submits that it is not available against the Crown by reason of Section 18 of the Crown Proceedings Act. In the case of Beverly v Registrar of Titles,[1]the Court stated;

"Mandamus is an order requiring an act to be carried out. In the past it was a prerogative of the Crown and so the Crown could not exercise it against itself. Mandamus is now an order of the Court, albeit discretionary ...1964. Its effect can indeed amount to injunction order or specific performance order, neither in available against the Crown by reason of S.18 of the Crown Proceedings Act where the obligation is that of the officer and not something that only the Crown itself may do. It may be made against an Officer of the Crown who is obliged by statute, to do some ministerial act; or against a subordinate tribunal to carry out its adjudication, but not to adjudicate to a particular result".

21. In another case Beverly v Commissioner of Lands[2] His Lordship Palmer, Chief Justice held;

".... For the Court to order a mandatory order against the Crown, there must first be a public duty which is required by the Defendant. In this case, the Commissioner of Lands had a public duty to enforce the restrictive covenants of the grant instrument, having failed to do so the Court ordered the Commissioner to enforce the restrictive covenants".

22. Therefore, for Orders 4-7 to succeed the Claimant has to show and proof to the satisfaction of the Court. From all the papers filed there is nothing to show that the Public Service Commission has a public duty to do what the orders sought; therefore the mandatory orders sought are misconceived.

23. The possible issues outline in this ruling, both in fact and law, should form an arguable case for the Claimant. As it appears to be, there seems to be no arguable case for the Claimant at all. I must therefore refuse to hear the claim.

Orders:

1. The Claim is hereby refused to be heard and therefore must be dismissed accordingly.

2. Cost incidental to this hearing is to be paid by the Claimant to the Defendant on standard basis.

The Court.

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^[1] (Unreported) HCSI CC no. 273 of 1997 (7 April 19990)
^[2] (Unreported) HCSI CC No. 348 of 2006 (10 April 2007)