Jacob Tuma v The Commissioner of Police

• Jurisdiction: Papua New Guinea
• Citation: [1996] PNGLR 430
• Date: 03 May 1996
• Court: National Court
• Year: 1996

National Court: Akuram AJ

Judgment Delivered: 3 May 1996

1 Administrative Law—Judicial Review—purported dismissal with no formal notice of dismissal

2 Dismissal with termination pay—advise in lieu of notice does not postpone the termination date—the dismissal is effective on the date when the member is told his services are no longer required

3 Failure to give notice contrary to s46(5) of Police Force Act (Ch65) is a breach of law and is void and of no effect

4 The following are proper and effective service of notice(s) of dismissal:

(a) For notice to be effective, notice of dismissal must be specific, unequivocal and clearly communicated to the member

(b) The notice is to take effect on the day it is received and the party giving notice has the duty to give it on time

(c) A Statement that a member's employment or services will cease on a certain date is effective notice

5 The following are not proper or effective service of notice of dismissal:

(a) Where notice is not received until the day on which it is to take effect is termination without notice

(b) Termination without the required notice, but with some notice, will still be wrongful

6 Sudi Yaku v Commissioner of Police; Ex Parte The State [1980] PNGLR 27, R v Gaming Board of Great Britain [1970] 2 QB 417, Okuk v Fallscheer [1990] PNGLR 274 and Malloch v Aberdeen Corporation [1971] 2 All ER 1278 referred to

7 Police Force Act (Ch65) s46 referred to

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Akuram AJ This is an application for Judicial Review of a decision of the Police Commissioner dismissing the Applicant upon a recommendation by the District Court Mendi after convicting and sentencing the applicant to 8 months. Upon appeal, the said sentence was quashed and replaced with a 12 months GBB by National Court. There being no recommendations made under s57(2)(a) of the Police Force Act (Ch65).

The brief facts are that the Applicant was charged by police on the 13th May 1994 for stealing Court Bail money in the sum of K530 which came into his possession by virtue of his employment as a policemen. He was convicted by the District Court Mendi and sentenced to 8 months and recommended for dismissal pursuant to s57(2)(a) of Police Force Act (Ch65) on 24th June 1994. He filed his Notice of Appeal on the same date of 24th June 1994 and released on bail on the 15th July 1994. On the 18th July 1994, three days after released on bail, he was served with a disciplinary charge which read:

At Mendi between Thursday 14th October 1993 and the 15th November 1993, you were guilty of improper conduct in your official capacity in that you did steal Police bail monies sum of Five hundred and thirty kine (K530) which had came into your possession by virtue of your employment (Police Department) and as Shift Supervisor". Contrary to s43(g) of the Police Force Act (Ch65).

He was served the above charge on the 15th August 1994 at 9.20 pm on Monday. He admitted the charge and said he will provide his explanations in writing. His explanation is that he got the money to pay for school fees for his four children, two in Grades 8 and 10 and two in Community School. As he was charged after his successful appeal on 24th July 1994, he also pleaded to the Police Commissioner that the sentence was too excessive as a first offender and that Court did not consider his good character in the...