Taule'alo v Attorney-General [1984] WSSC 1 (9 June 1984)

IN THE SUPREME COURT OF WESTERN SAMOA

HELD AT APIA

IN THE MATTER of "The Public Service Act 1977" and the Judicature Ordinance 1951

AND:

IN THE MATTER of "The Arbitration Act 1976" and the Government Proceedings Act 1974

BETWEEN:

TOFA TU'U'U IETI TAULE'ALO of Apia
Applicant

AND:

THE ATTORNEY-GENERAL, sued for and on behalf of the Government of Western Samoa
First Respondent

AND:

THE PUBLIC SERVICE COMMISSION a body duly established under the Constitution and the Public Service Act 1977
Second Respondent

Counsel: Epati for Applicant; N. Slade for First & Second Respondents

Hearing: 5th & 8th June 1981
Judgment: 9th June 1984

REASONS FOR JUDGMENT OF R.J.B. ST. JOHN, C.J.

This is an application for declaratory orders, original applicant being the Public Service Association of Western Samoa Incorporated. An application to substitute the present applicant and to allow the application to proceed as a representative action pursuant to Rule 36 of the Civil Procedure Rules of this Court was granted without opposition from Respondents' counsel.

The applicant and those whom he represents in the action are officers of the Public Service of Western Samoa who have been on strike since the 6th of April 1981. The respondents are the Attorney-General firstly as representing the Government of Western Samoa (First Respondent) and secondly as representing the Public Service Commission (Second Respondent). The evidence reveals that negotiations have gone on between the Public Service Association, the Government and the Public Service Commission in an effort resolve the dispute and to restore the Public Service to its previous working capacity. At one stage in these negotiations an offer was made to the striking officers that if they returned to work before a stipulated date they will be granted special leave pursuant to regulation 13 of the Public Service Regulations (the Regulations). Some striking officers accepted offer, returned to work and the Commission purported to grant them special leave for the period during which they have been on strike. The applicant’s case is that the declaratory orders are necessary in order that legal rights of the striking officers upon resumption of work can be clarified. The declarations sought by the applicant are as follows:

"(i) (a) THAT upon the operation of Section 39(1) of the Public Service Act 1977 forfeiting office of a public servant the only avenue for valid reinstatement of such an employee under the Act is to satisfy the Second Respondent that there was a valid reason for his absence in terms of Section 39(2)

(b) THAT Regulation 13 of the Public Service Regulations 1979 has no connection with Section 39 of the Public Service Act 1977 and cannot operate to validly cure the forfeiture by operation of law of the office of an employee whose office has been forfeited under Section 39 (1) of the same Act 1977.

(ii) THAT the Respondents if they have the will to do so can consent to the present industrial dispute between the Applicant and the Respondents to-be referred to arbitration under the Arbitration Act 1976."

The most convenient approach seems to me to be to examine the functions and powers of the Public Service Commission in its constitutional and legislative context. Provision is made for a Public Service Commission in article 84 of the Constitution and by article 87, its responsibility is appointment, promotion, transfer, termination of appointment, dismissal and discipline of the Public Service" and such other functions as may be provided by Act." By sub-article 2 of that article the Commission is enjoyed to have regard to the general policy of Cabinet applying to the Public Service. The historical background and the relevant articles in the constitution provide sufficient material to enable it to be held that the clear intention of the framers of the constitution was that the Commission was to be independent of government interference and direction in its decision, but to take into account the policy of Cabinet as quoted. This independence is designed to prevent nepotism and interference in its decision making which could affect the efficiency of the Public Service.

The Public Service Act 1977 (The Act) is in the traditional form of such acts in to the British Commonwealth democracies. The Commission's independence is emphasized by the width of its powers; notable examples being the salary fixing (section 19), offences (sections 31, 32, 33 and 34) classification grading of salaries (section 21). The basic intention manifested is that the Commission is charged with the prime duty of maintaining an efficient Public Service, the vehicle with which legislation is put into effect.

It is against this background that the application should be considered together with the relevant sections of the Act and the relevant regulations.

Section 39 of the Public Service Act is expressed thus:

"39. Unauthorized absence - (1) Notwithstanding the provisions of section 32, 33 and 34 of this Act, an employee who absents himself from duty, or who fails to return to duty, and (in either ease) continues to e absent without permission for a period of not less than 2 weeks shall be deemed to have forfeited office.

(2) If the employee subsequently satisfies the Commission that there was a valid reason for his absence and for his failure to inform the Commission earlier of that reason, the Commission may reinstate the employee; and in such a ease the employee shall be deemed not to have forfeited office, but to have been on leave without pay from the Public Service during the period of absence."

Regulation 13, appearing under the heading Leave; "annual, special, maternity, sick and study leave" is in these terms:-

"13. Special Leave - In special circumstances, the Commission may grant any employee special leave of absence with or without pay on such terms and conditions as it thinks fit."

I find it unnecessary to quote any of the provisions of the Arbitration Act 1976. Suffice it to say that it also is in the traditional form of Arbitration Acts designed to allow contracting parties to submit to Arbitration such matters for resolution as they care to. The applicant's submission is that either of the respondents could submit to arbitration the dispute as to salary levels payable to public service officers. The fixing of such levels is the sole responsibility of the Public Service Commission as set out in section 19 of the Act. That section provides follows:-

"19. Payment of employees -

(1) Notwithstanding any other this Act, officers, probationers and temporary employees shall be paid salaries, wages and allowances at such rates or in accordance with such scales as the Commission from time to time determines:

Provided that the remuneration by way of salary and wages paid to any employee shall not exceed the rate of 5,000 tala a year without the prior approval of the Head of State acting on the advice of Cabinet.

(2) The salary, wages, allowances and grants of employees under this Act shall be paid out of the Treasury Fund or such other Fund as may be permitted by law and shall be a first charge thereon."

In my view the proviso for a ceiling of 5,000 tale serves to emphasize the width of the Commission powers in relation to salaries below that figure. There has been no suggestion that the salaries with which the application is concerned are of this order. It is perfectly clear that the first respondent cannot be a party to any arbitration proceedings as there is no contractual connection between it and the Public Service. As to the second respondent it is possible for it to delegate its functions pursuant to Article 88 of the Constitution to members or to a person. Although it may be possible to delegate the question of salary fixing to someone who arbitrates between the Commission and the officers, there was not sufficient evidence before me to even suggest that such a course has ever been considered or is likely to occur. In any event the applicant's legal rights are not affected; the respondents' legal rights can only be declared insofar as they affect applicant.

This brings me to the scope of a superior court's jurisdiction to grant declaratory relief. Firstly I should observe that this jurisdiction is one in which there has been rapid expansion. Only recent cases defining the cope of this jurisdiction merit attention. In Rediffusion (Hong Kong) Limited v Attorney-General of Hong Kong [1907] AC 1136 at page 1158, Lord Diplock in delivering the majority advice said this-

"all questions involved in quia times proceedings are hypothetical and future. To exclude the jurisdiction of the court to enquire into them in order to decide whether to exercise its discretion to grant relief, the defendants would have to show that the questions were purely abstract questions the answers to which were incapable affecting any existing or future legal rights of the plaintiffs."

It is common ground in the present application that both parties are desirous of the resumption of contractual relations between the Commission and the striking officers which relations are in part governed by the Act and Regulations. Future legal rights are involved, in addition to existing rights under section 39 of the Act.

From a wealth of authority to which counsel have referred me and I have researched, I make one further quotation of the general principle from Ibeneweka v Egbuna [1964] 1 WLR at page 225. There, Lord Radcliffe, in his speech to the House of Lords, said:

"After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant of declaration should be exercised with a proper sense of responsibility and full realisation that judicial pronouncements ought not be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration."

The original of that report is not available to me but it was quoted with approval by Gibbs J (as he then was) in Forster v Jodddex Australia Pty. Ltd. 127 aCLR 421 a decision of the High Court of Australia. The majority in that case also relied upon Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC, 438, at page 448 where his Lordship said:

"The question must be a real and not a theoretical question, the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say someone presently existing who has a true interest to oppose the declaration sought."

This application has not been without a contradictor. The learned Attorney-General has strenuously argued against the interpretation of the Act and regulations contended for and there is ample evidence that the striking officers have a real interest in the resumption of a legal relationship with the commission.

Coming to the interpretation of section 39 I am of the opinion that once an employee has been absent for the requisite period of 14 days he is no longer an employee for any purpose. All that the employee has left is an inchoate right to apply for reinstatement pursuant to Section 39(2). It therefore follows that leave (special or other) cannot be granted after the employee is deemed to have forfeited office. The learned Attorney- General emphasized, in a well-presented argument, the difficulties facing the Public Service Commission if the court decided that section 39(2) was the only avenue for re-employment of the striking officers. I see nothing in the Act or Regulations to prevent the Public Service Commission re-employing any striking officer with no loss of the benefits and privileges previously held once a decision has been made against the employee under section 39(2). Additionally, I see no reason why in the exercise of its administrative discretion the Commission could not come to the decision that the striking officers had a valid reason for absenting themselves from work. Administrative decisions do not become precedents binding for the future. All that is required of the Commission in the exercise of its discretion under section 39(2) is that it should pursue its function conscientiously bearing in mind its very important responsibility of maintaining an efficient Public Service. Immediately, I declare that no suggestion as to how the discretion should be exercised is to be inferred from those remarks or any remarks in this judgment. Any decision under section 39(2) is the Commission's sole responsibility. Before making the declaration I wish to make it clear that in making the first declaration I exclude from the meaning of "reinstatement" therein necessary to emphasize that what is being dealt with in this judgment, is the form of the proceedings and allegations made, not facts proved.

The application to strike out the petition is dismissed. Costs are reserved.

Re-employment whether such re-employment is on the precise terms applicable to the striking officer at the time the strike commenced or on terms different to those.

Additionally, I should deal with the learned Attorney-General's submission that "valid reason" within section 39(2) has at least a flavour of the meaning "legal" in it. It is true that the primary meaning "valid" is "legal" but looking at the context of the Commission's functions to maintain an efficient public service and the obvious advantages of an employer behaving with humanity, consideration, and understanding in the infinite variety of human and other problems which sometimes all employees at some stage or other, I am of the view that the secondary meaning of the word "valid" as being "sound and to the point", in justification of the absence, is more appropriate.

With the qualification I have already outlined in relation to the word "re-instatement" I make declarations (i)(a) and (b) and I refuse to make declaration (ii).

R.J.B. St. JOHN,
CHIEF JUSTICE