Bau Waulas v Veronica Jigede, as Provincial Administrator of New Ireland Province and Department of Personnel Management and The Independent State of Papua New Guinea (2009) N3781

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Makail, J
• Judgment Date: 19 October 2009
• Citation: (2009) N3781
• Judgment Number: N3781
• Year: 2009
• Docket Number: OS NO 69 OF 2009

Full Title: OS NO 69 OF 2009; Bau Waulas v Veronica Jigede, as Provincial Administrator of New Ireland Province and Department of Personnel Management and The Independent State of Papua New Guinea (2009) N3781

National Court: Makail, J

Judgment Delivered: 19 October 2009

N3781

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 69 OF 2009

BETWEEN

BAU WAULAS

Plaintiff

AND

VERONICA JIGEDE, as PROVINCIAL ADMINISTRATOR OF NEW IRELAND PROVINCE

First Defendant

AND

DEPARTMENT OF PERSONNEL MANAGEMENT

Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Kokopo: Makail, J

2009: 22nd July & 19th October

JUDICIAL REVIEW - Review of Acting Provincial Administrator’s decisions to inter-alia dismiss officer - Officer charged with multiple serious disciplinary charges - Convicted by District Court of 2 criminal offences - Whether dismissal from employment automatic by operation by law - Whether criminal offences relate to duties of officer’s office - Requirement to inform officer of decisions within 21 days mandatory - Breach of - Effect of - Public Service (Management) Act 1995 - Sections 50, 52, 53 & 70 - Public Service General Order 15.35.

JUDICIAL REVIEW - Breach of natural justice - Right to be heard on penalty - Effect of - Decisions to inter-alia dismiss null and void - Application upheld and decisions to inter-alia dismiss officer quashed - Constitution - Section 59.

PRACTICE & PROCEDURE - Remedies - Reinstatement - Discretionary relief - Principles of - Claim for loss of salaries and entitlements - Discretionary relief - Claim for damages for frustration and distress - Whether permissible in applications for judicial review - Consequential relief - National Court Rules - Order 16, rules 3 & 7.

Cases Cited:

Kekedo -v- Burns Philip (PNG) Limited [1988-89] PNGLR 122

Samson David -v- Manasupe Zurenouc (2007) N3146

Tindiwi -v- Nilkare [1984] PNGLR 191

Sakawar Kasieng -v- Andrew Baigry (2004) N2562

Jim Nomane -v- David Anggi (No1)(2003) N2496

Philip Kamo -v- The Commissioner of Police & Ors (2001) N2084

John Magaidimo -v- Commissioner of Police (2004) N2752

Pierson Joe Kamangip -v- Bernard Orim & Ors (1998) N1695

John Unido -v- Sam Inguba, Commissioner of Police (2003) N3369

The State -v- Guai [1990] PNGLR 162;(1990) N837

Mision Asiki -v- Manasupe Zurenouc, Morobe Provincial Administration and The State (2005) SC797

Isaac Lupari -v- Sir Michael Somare, Prime Minister, NEC & The State (2009) N3476

Joe Ponau -v- Teaching Service Commission Disciplinary Committee (2006) N3059

Peter Bon -v- Mark Nakgai, Acting Chief Executive Officer, Wewak General Hospital & Ors (2001) N2123

Peter Luga -v- Richard Sikani, Commissioner of CIS (2002) N2285

Clement Kelipak -v- Ellision Kaivovo (2003) N2402

Lawrence Sausau -v- Joseph Kumgal (2006) N3253

Peter Aigilo -v- Sir Mekere Morauta, as Prime Minister & The State (2001) N2103

Peter Na-al -v- Michael Debege & Fly River Provincial Government (2000) N1958

Counsel:

Mr P. Yange, for Plaintiff

Mr F. Cherake, for Defendants

JUDGMENT

19th October, 2009

1. MAKAIL J: This is an application for judicial review of 8 decisions of the First Defendant to inter-alia, dismiss the Plaintiff from the employment of the New Ireland Provincial Administration as the Acting Director for Health on 23rd April 2008. Leave for judicial review was granted by the National Court on 27th March 2009.

2. The 8 decisions are a result of 12 serious disciplinary charges laid against the Plaintiff by the First Defendant under section 52 of the Public Services (Management) Act 1995 (“PSM Act”), and they are:

# Charge 3 - That, as Acting Director for Health, in 2007, he permitted the alteration of figures for officers’ allowances from HSIP funds for work carried out at CDC Lakuramau which resulted in the officers receiving K120.00 more than what they were entitled to received.

Verdict - Guilty - Penalty - Fine of K140.00 which is 20% of his gross fortnightly salary.

# Charge 4 - That, in July 2005, he demanded K200.00 travel allowance belonging to Simon Yamin from Joe Kiliahe and did not hand the money over to Simon Yamin to date resulting in HSIP official record showing that the money is yet to be acquitted.

Verdict - Guilty - Penalty - Fortnightly gross salary point 9.5 (K699.98) is reduced to 9.4 (K658.24).

# Charge 7 - That, he disregarded a lawful order made or given by the Provincial Administrator, Mr Robinson Sirambat on 25th June 2007 directing him to return the vehicle Registration No PAE 048 to the Manager-Transport & Administration Services with immediate effect, but despite the directive, he continued to keep the vehicle at his resident after hours until the vehicle was involved in an accident at Putput village in 2008 and is now of the road.

Verdict - Guilty - Penalty - Fortnightly gross salary point of 9.4 (K658.24) is reduced to 9 (K626.91).

#Charge 8 - That, he committed a breach of the Public Service (Management) Act 1995, by willfully disobeying the lawful direction given by the Provincial Administrator, Mr Robinson Sirambat on 25th June 2007 for his NIPG driving licence to be suspended, but despite the instruction, he continued to drive NIPG vehicle Registration No PAE 048 thereafter.

Verdict - Guilty - Penalty - Fortnightly gross salary point of 9.3 (K626.91) is reduced to 9.2 (K595.59).

# Charge 9 - That, he committed a breach of the Public Service

(Management) Act 1995, in that he was convicted by the Kavieng District Court on 14th February 2007, for driving a motor vehicle, Toyota Hilux Double cabin, Registration No LAP 693 without due care and attention which is a criminal offence.

Verdict - Guilty - Penalty - Dismissal from Public Service.

# Charge 10 - That, on 11th September 2006, he committed a breach of the Public Service (Management) Act 1995, by not being careful when driving and using a State property, a motor vehicle, Toyota Hilux Double cabin, Registration No LAP 693 which crashed into the mangroves at the side of the road at Lavatbura village, resulting in damage to the vehicle costing the New Ireland Provincial Government K15,691.19 for repairs and maintenance.

Verdict - Guilty - Penalty - Demoted by one classification level from Grade 9 to Grade 8.

# Charge 11 - That, he committed a breach of the Public Service

(Management) Act 1995, in that he was convicted by the Kavieng District Court on 13th August 2007, for committing a criminal offence of driving a Provincial Government vehicle PAE 048 without due care and attention upon Mongol street, Kavieng, New Ireland Province.

Verdict - Guilty - Penalty - Dismissal from Public Service.

#Charge 12 - That, he was incompetent from causes within his control and collided with another vehicle Registration No NAC 157 parked at the front of Joe Tong’s Liquor shop last year in 2007, resulting in your conviction by the Kavieng District Court on 13th August 2007 on a criminal charge.

Verdict - Guilty - Penalty - Fortnightly gross salary point of 9.2(K595.59) is reduced to 9.1 (K564.27).

BRIEF FACTS

3. The Plaintiff is from Laraibian/Madina village in the East Coast Kara/Nalik area of Tikana Local Level Government ward, in Kavieng of the New Ireland Province and was employed by the New Ireland Provincial Administration for 25 years until his dismissal by the First Defendant on 23rd April 2008. How he was dismissed is this; on 18th February 2008, he was served with a notice of suspension which effectively meant that he was suspended from performing his official duties. On 18th March 2008, he was served with 12 notices of serious disciplinary charges by the First Defendant all containing serious disciplinary charges of various allegations against him which are set out above.

Two (2) of the 12 disciplinary charges relate to allegations of driving without due care and attention resulting in 2 separate motor vehicle accidents involving Provincial Government-owned vehicles. As a result of the 2 motor vehicle accidents, the Plaintiff was convicted by the Kavieng District Court and fined. The remaining 10 disciplinary charges relate to incompetency, inefficiency, negligence and carelessness in the discharge of his duties as Acting Director for Health in the New Ireland Provincial Administration.

4. On the same day, he replied to the 12 notices of serious disciplinary charges in writing refuting the allegations. On 24th April 2008, he received 12 notices dated 23rd April 2008 informing him of the decisions of the First Defendant in finding him guilty of charges 3,4,7,8,9,10,11,and 12 while finding him not guilty of charges 1,2,5, and 6. From these 12 notices of serious disciplinary charges, the Plaintiff seeks review of the decision to first, find him guilty of 8 of the 12 serious disciplinary charges and secondly, imposition of a variety of penalties ranging from reduction in pay to demotion in position for 6 of the serious disciplinary charges and dismissal from employment for 2 of the serious disciplinary charges, for his involvement in two separate accidents involving two motor vehicles owned by the New Ireland Provincial Government, where he was found guilty by the Kavieng District Court.

GROUNDS FOR REVIEW

5. There are two grounds of judicial review and they are set out in the Amended Statement in Support of the application for judicial review filed on 19th...