Peter Bon v Mark Nakgai, Acting Chief Executive Officer, Wewak General Hospital, Laura Martin, Acting Chairperson, Wewak Hospital Management and Dr Puka Temu, Secretary, Department of Health (2001) N2123

• Jurisdiction: Papua New Guinea
• Judge: Gavara–Nanu J
• Judgment Date: 29 May 2001
• Court: National Court
• Citation: (2001) PNGLR 18
• Year: 2001
• Judgement Number: N2123

Full Title: Peter Bon v Mark Nakgai, Acting Chief Executive Officer, Wewak General Hospital, Laura Martin, Acting Chairperson, Wewak Hospital Management and Dr Puka Temu, Secretary, Department of Health (2001) N2123

National Court: Gavara–Nanu J

Judgment Delivered: 28 or 29 May 2001

N2123

PAPUA NEW GUINEA

[In the National Court of Justice]

Between:

PETER BON

- Plaintiff -

And:

MARK NAKGAI,

ACTING CHIEF EXECUTIVE OFFICER,

WEWAK GENERAL HOSPITAL

- First Defendant —

And:

LAURA MARTIN, ACTING CHAIRPERSON,

WEWAK HOSPITAL MANAGEMENT

- Second Defendant —

And:

DR. PUKA TEMU, SECRETARY,

DEPARTMENT OF HEALTH

- Third Defendant —

WAIGANI: GAVARA-NANU, J

2001: 21, 29 May

PRACTICE & PROCEDURE — Judicial review — Public Services Management Act 1995, s. 52 (2), (3), (4), (5) & (6) — Disciplinary charges — Defective if not laid by the Departmental Head, or an officer authorised by the Departmental Head to lay charges — Suspension — Unlawful if not imposed by the Department Head, or an officer authorised by the Departmental Head to lay charges and where there is no emergency — Termination — Unlawful if imposed by an authority other than the Departmental Head, or an officer having delegated powers.

PRACTICE & PROCEDURE — Judicial review — Public Services Management Act 1995, ss. 13, 18 — Constitution, s. 191 — Powers of the Public Services Commission to collect evidence to review a personnel matter — Discretionary powers of the Public Services Commission — Recommendations by the Public Services Commission bear Constitutional force — Authority refusing to implement recommendations by the Public Services Commission must have valid reasons.

PRACTICE & PROCEDURE — Judicial review — Public Services Management Act 1995. s. 23 — Delegated powers from a Departmental Head must be specified in writing — Authority with delegated powers cannot sub-delegate those powers — Authority claiming delegated powers has the onus to prove them on the balance of probabilities.

ADMINISTRATIVE LAW — Judicial review — Principle of fair and adequate remedy — Powers to reinstate where termination is clearly unlawful and where reinstatement is to give effect to the Public Services Commission recommendation and is the fair and adequate remedy — Inherent powers of the Court — Constitution, s.155 (4) — Long service and special qualifications of the terminated officer constitute exceptional circumstances warranting reinstatement — Where remedy is in damages, the terminated officer may be treated as having been retired or retrenched and be compensated accordingly under the Public Services General Orders — Where there are no exceptional circumstances, the Court to determine an appropriate period for which the officer should be compensated based on the officer's entitlements — Employment Act, Ch. No 373 is inapplicable.

ADMINISTRATIVE LAW — Judicial review — Delay — Order 16 r 4 of the National Court Rules — Delay is a substantive issue which must be decided objectively on the overall evidence before the Court.

MASTER & SERVANT — Principles of pure master and servant and simple employer/employee do not apply to public servants — Public Services Management Act 1995 protects and governs the terms and conditions of employments for public servants.

Facts

The Plaintiff, a Pharmacist by profession was the Officer In-Charge of the Wewak General Hospital Dispensary Unit. He was terminated by the Hospital Management for chewing betel nuts on the hospital grounds

after the hospital management issued Circulars to the staff stopping them from chewing betel nuts and smoking on the hospital grounds. He was charged and suspended by an officer other than the Departmental Head or an officer authorised by the Departmental Head to lay charges, under s. 52 (2) of the Public Services Management Act. The Plaintiff was eventually terminated by the hospital management. The notice of punishment under s. 52 (6) of the Public Services Management Act was issued by an officer claiming to have the delegated powers from the Departmental Head, but no evidence was produced to prove such claim. After reviewing the Plaintiff's complaint, the Public Services Commission recommended that the Plaintiff be reinstated without any loss in salary and service entitlements, but the recommendation was rejected on the basis that the Commission did not seek the views of the officer who issued the notice of punishment to the Plaintiff. At the time of his termination, the Plaintiff had been working for the Department of Health for 22 years. The Plaintiff sought declarations that his termination was harsh and oppressive and an order in the nature of certiorari to quash his termination and the notice of punishment. He did not specifically seek reinstatement but sought such other Orders as the Court deemed fit.

Held:

1. The disciplinary charges laid against the Plaintiff by an officer other than the Departmental Head, or an officer authorised by the Departmental Head to lay charges contravened s. 52 (2)(a) of the Public Services Management Act.

2. The suspension imposed by an officer other than the Departmental Head, or an officer authorised by the Departmental Head to lay charges, when there was no emergency, contravened s. 52 (2)(b)(ii) of the Public Services Management Act.

3. The Wewak General Hospital Management had no power to terminate the Plaintiff. The power to terminate is vested solely in the Departmental Head under s. 52 (5) of the Public Services Management Act.

4. The officer claiming to have delegated powers from the Departmental Head to impose the punishment under s. 52 (5) of the Public Services Management Act, had the onus to prove that he did in fact have such powers.

5. An officer having delegated powers under s. 23 of the Public Services Management Act, cannot sub delegate those powers.

6. Recommendations by the Public Services Commission under s. 18 (2) (c) of the Public Services Management Act, also have the force and weight of the Constitution; therefore, they cannot be refused without valid reasons.

7. Where the termination of an officer is clearly unlawful, the Court should readily exercise its equitable supervisory jurisdiction to order reinstatement, unless the requirements of Order 16 Rule 4 of the National Court Rules render the reinstatement impossible, in which case, the officer should be treated as having been made redundant or retrenched and compensated accordingly under the Public Service General Orders, but where there are no exceptional circumstances, the Court can in its discretion determine an appropriate period for which the officer should be compensated based on the officer's entitlements; guiding principle being to grant a remedy that is fair and adequate to the officer. Employment Act. Ch. No. 373 is inapplicable in such cases.

Christopher Appa -v- Peter Wama & Others [1992] PNGLR 395 — not followed.

8. Common law principles of pure master and servant do not apply to the public servants because of the public character of their employments and the statutory protection given to them by the Public Services Management Act which governs their terms and conditions.

9. Professional qualifications of the terminated officer and the long

service in the Public Service are exceptional circumstances,

which would warrant reinstatement, subject to Order 16 Rule 4

of the National Court Rules.

Papua New Guinea Cases Cited:

Kekedo v Burns Philp (PNG) Ltd & Ors [1988-89] PNGLR 122

Godfrey Niggints v Henry Tokam & Ors [1993] PNGLR 66

Kundu Busu v Post & Telecommunication Corp. [1993] PNGLR 321

Application of Eric Gurupa — N856

Avia Aihi v The State [1981] PNGLR 81

Steven Pupune & 7 Ors v Aita Ivarato & Ors — N1539

David v Pitzz [1988-89] PNGLR 143

Phochon Lili v Joseph Gabut & Ors — N1394

NTN Pty Ltd v Post & Telecommunications Corp. [1987] PNGLR 70

Wata Potenge v Boski Tony & Ors. (Unreported — 9th June, 2000)

Christopher Appa v Peter Wama & Ors [1992] PNGLR 395

Other Cases Cited:

Malloch v Alberdeen Corporation [1971] AII ER 1278

Counsel:

Mr J. Kawi for the State

Mr D. Liosi for the Plaintiff

28th May, 2001.

GAVARA — NANU, J.: The Plaintiff seeks a declaration that the notice of punishment issued to him by the First Defendant on 30th March, 1999, which effected his termination on 26th March, 1999, is excessive, harsh and oppressive and seeks further Orders in the nature of certiorari to remove into this Court and quash the notice of punishment and the decision by the First Defendant...