Godfrey Niggints v Henry Tokam, Paul Songo and The Independent State of Papua New Guinea [1993] PNGLR 66

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Amet J
• Judgment Date: 15 July 1993
• Citation: [1993] PNGLR 66
• Judgment Number: N1158
• Year: 1993

Full Title: Godfrey Niggints v Henry Tokam, Paul Songo and The Independent State of Papua New Guinea [1993] PNGLR 66

National Court: Amet J

Judgment Delivered: 15 July 1993

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

GODFREY NIGGINTS

V

HENRY TOKAM,

PAUL SONGO, AND THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Amet J

15 July 1993

JUDICIAL REVIEW — Public Services (Management) Act 1986 — Section 47 — Power of departmental head to charge.

PRACTICE AND PROCEDURE — Exercise of power to charge — Procedure on determination of charge.

ADMINISTRATIVE LAW — Public Services Commission recommendation — Section 17 — Ambit of powers of departmental head considered.

Facts

The applicant was a senior officer in the Department of Correctional Services. Allegations of improper conduct against him resulted in three investigations directed by the Commissioner of Corrective Institutions, the first respondent. A report by the Deputy Commissioner strongly recommended against laying charges against the applicant. The Commissioner, nevertheless, directed the Deputy Commissioner to lay the charges. The Commissioner, under his power, sustained the charges and ordered that the applicant be dismissed from service. The applicant appealed to the Public Services Commission (PSC) under s 17 of the Public Services (Management) Act 1986. The PSC, after its review, recommended revocation of the first respondent's decision. The first respondent rejected the recommendations without giving any reasons and proceeded to confirm his own decision. The applicant applied for judicial review of that decision.

Held

1. The departmental head has a discretion to charge an officer on proper prima facie grounds, but not arbitrarily.

2. The first respondent erred in the exercise of his discretion to direct the laying of charges against the applicant when the Deputy Commissioner, after investigation, unequivocally recommended against laying charges.

3. The departmental head has a public duty and a responsibility to exercise a discretion to accept or reject recommendations of the PSC review. This discretion should be exercised on good meritorious grounds, and not arbitrarily without reasons.

4. The first respondent erred in the exercise of his discretionary power in not accepting the recommendations of the PSC to revoke his decision, without stating any reasons for his action.

5. Findings of improper conduct and penalties of dismissal from the service against the applicant be quashed.

6. The applicant be reinstated to his former substantive position with restoration of all entitlements, retrospective to date of dismissal.

Counsel

J Wal, for the applicant.

P Tamagle, for the respondents.

15 July 1993

AMET J: This is an application for judicial review of decisions of the first respondent, as Commissioner of Corrective Institutions (hereafter, the Commissioner), against the applicant.

The applicant was a superintendent in the Department of Correctional Services in 1991. Certain allegations of improper conduct arose in relation to his tour of duty as commander of the Highlands Region, based at Baisu Corrective Institution in the Western Highlands Province, in 1990.

The Commissioner authorised an internal investigation, which was followed by a further investigation by the senior internal auditor, who submitted a report to the Commissioner. The Commissioner then directed the Deputy Commissioner, J P Delgoda, to further investigate the allegations, generally with the view to the possibility of laying charges against Mr Niggints.

Deputy Commissioner Delgoda concluded his investigations and submitted a report with his recommendations to the Commissioner. Mr Delgoda swore an affidavit, filed in these proceedings, deposing to these facts and annexed a copy of his report to the Commissioner. He recommended that no charges be laid against the applicant because he considered it would not be possible to sustain them at an impartial inquiry because he found the internal auditor's report to be inaccurate in many respects.

Notwithstanding this recommendation, the Commissioner elected to have the applicant charged and directed Deputy Commissioner Delgoda to lay the charges, which the latter did.

On 5 September 1991, the applicant was charged with 8 counts of improper conduct pursuant to s 45 (1) of the Public Services (Management) Act 1986. He was given seven days within which to reply to the charges, failing which, the notice stipulated "you may be deemed to have admitted the truth of the charge". These charges were served on the applicant, who, on the same day, 5 September 1991, wrote to the Commissioner seeking further and better particulars of the charges and requesting an extension of time within which to reply. On 10 September 1991, the Commissioner wrote to the applicant refusing an extension of time, but providing brief lead information on each of the charges.

On 10 September 1991, the applicant replied to the charges, denying each one with quite full explanations and reasons. On 3 December 1991, the Commissioner gave notice to the applicant of his decisions which, in respect of four of the charges, was dismissal from the service.

The notices also advised that, in accordance with s 17 of the Public Services (Management) Act, the applicant had the right to seek a review of the decision by the Public Services Commission. The applicant appealed to the Public Services Commission on 10 January 1992.

The Public Services Commission, on 17 March 1992, advised the first respondent of the conclusions of its investigation and its recommendations. The Commission recommended that all the decisions of finding guilt and penalties be revoked, that the applicant be reinstated to his former substantive position as senior superintendent, that he be paid all his entitlements and benefits retrospective to the date of his dismissal, and that all documents containing allegations, charges and any undesirable information pertaining to the good character of Mr Niggints be removed from his records of service.

On 4 June 1992, the first respondent advised the applicant that he had received advice from the Public Services Commission on the result of its review and its recommendation. He advised that:

"Recommendations from the Public Services Commission are...