Graham Kevi v The Teaching Service Commission Disciplinary Committee [1997] PNGLR 659

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Lenalia AJ
• Judgment Date: 24 April 1997
• Citation: [1997] PNGLR 659
• Judgment Number: N1555
• Year: 1997

Full Title: Graham Kevi v The Teaching Service Commission Disciplinary Committee [1997] PNGLR 659

National Court: Lenalia AJ

Judgment Delivered: 24 April 1997

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

O.S. NO. 175 OF 1996

BETWEEN

GRAHAM KEVI — PLAINTIFF

AND

THE TEACHING SERVICE COMMISSION DISCIPLINARY COMMITTEE — DEFENDANT

Mount Hagen

Lenalia AJ

11 April 1997

24 April 1997

ADMINISTRATIVE LAW — Judicial review — Judicial review of administrative action — Certiorari — Decision of Disciplinary Committee — dismissal of member of Teaching Service — Disciplinary action — Part VII of the Teaching Service Act (Ch. No. 71) and PART II of the Teaching Service Regulations.

JUDICIAL REVIEW — Administrative decision — Dismissal — No opportunity to be heard — Administrative remedies exhausted — Disciplinary considerations — Disciplinary Committee — Duty to act fairly includes duty to give reasons.

JUDICIAL REVIEW — Natural justice — Disciplinary proceedings resulting in finding of guilt — Proceeding in absence of member concerned — Whether Disciplinary Committees constituted under PART VII — Division should proceed in absence of member charged.

Held

(1) As a matter of statutory construction of the Teaching Service and Teaching Service Regulations (Ch. No. 71), the Disciplinary Committee constituted as an appellate Board is required by law to give reasons for dismissal and an opportunity to be heard before the member was dismissed. Ridge v Baldwin [1963] 2 All ER 66 and Yambaki Okuk and Another v Fallscheder [1980] PNGLR 274 applied.

(2) Where the Teaching Service Commission Disciplinary Committee acts on recommendation by the National Education Board Disciplinary Committee resulting in a finding of guilt, the Disciplinary Committee must give reasons at the time the member is informed of the decision.

(3) Although there may not be any specific requirement under the Teaching Service and Teaching Service Regulation for the Disciplinary Committees to give reasons, it is a requirement of the principle of natural justice to give reasons.

(4) The Defendant erred in law by failing to give reasons for finding the plaintiff guilty of a serious disciplinary charge.

(5) The Defendant erred in law when it adopted the decision to dismiss the plaintiff when the charge was not supported by any evidence.

Cases Cited

Rose Kekedo v Burns Philip (PNG) Ltd and Others [1988-89] PNGLR 122

Ridge v Baldwin [1963] 2 All ER 66

Mallock v Aberdeen Corporation [1971] 2 All ER 1278

Fallscheer v Iambaki Okuk and Another [1980] PNGLR 101

Yambaki Okuk and Another v Fallscheder [1980] PNGLR 274

Niggints v Tokam [1993] PNGLR 66

Breen v Amalgamated Engineering Union [1971] 2 QB 175

Materials Referred To

Faulkes on "Administrative Law" Fifth Ed.

Counsel

D O'Connor for the Plaintiff

24 April 1996

LENALIA AJ: The Plaintiff was granted leave to apply for judicial review on 28th of June, 1996. The matter has since been adjourned from time to time until it came up before me on 11th of April for hearing.

The Plaintiff applies for judicial review pursuant to Order 16 of the National Court Rules 1983 (Ch. No. 38) asking the Court to remove to it and quash a determination of the National Education Board Disciplinary Committee made on 18th of August 1995 which decision was subsequently confirmed by Defendant dismissing the plaintiff from his teaching career as a lecturer at the Mount Hagen Technical College in the Western Highlands Province. Disciplinary Committees are constituted under Part VII — Division 1 of the Teaching Service Act and Part II Divisions 1 and 2 of the Teaching Service Regulations (Ch. No. 71). The plaintiff was charged with a serious charge pursuant to S. 83 (1) of the Act and S. 19 of the Regulations on the 18th of August 1995 and the charge was served on the plaintiff on the 1st of September the following month. This was a serious disciplinary charge. The nature of the charge were that the plaintiff on 22nd day of June 1995 did turn up for work heavily intoxicated with alcoholic liquorand further was unable to teach and thereby neglected his duties. There was a further allegation contained in the charge that the plaintiff had committed similar behaviour on two (2) previous occasions for which the plaintiff was highly reprimanded in 1994.

On receipt of the notice of the charge the plaintiff immediately reacted by sending two written replies to the first Assistant Secretary Special Services, Technical Division — Education Department, in Moresby, (see Ann. "B" and "C" dated 2nd and 10th September 1995). In both replies the plaintiff pleaded his innocence and admitted that although he had consumed liquor the previous evening, he denied consuming liquor on the date stated in the charge. The Plaintiff also alleged that on the date stated in the charge, he was in the campus until 9.45 am when he left the campus. He was not engaged in teaching that day and seeing he had no classes on 22nd June, he applied for a leave of absence for that day. This is evidenced by an application for leave attached to his affidavit (see Ann. "D").

By the 16 day of October 1995, the Plaintiff was served with a copy of the decision made by the National Education Board Disciplinary Committee on 5th of October the same month which committee acted on recommendations by the National Education Board recommending that the Plaintiff should be dismissed from the Teaching Service (see S. 85 (4) of the Act and S. 19 (4) of the Regulations).

Following service of the notice of dismissal, the plaintiff immediately appealed to the Chairman of the Teaching Service Commission Disciplinary Appeal Committee detailing his reasons for his innocency and an allegation that, the findings by the National Education Board Disciplinary Committee's decision to suspend and dismiss him was ill-conceived and unsubstantiated by evidence. The plaintiff on both occasions had the right under S. 80 (10) of the Teaching Service Act to appeal to those respective committees to which he had appealed to.

The Defendant Board determined the plaintiff's appeal on 21st of December 1995 pursuant to S. 80 (11) and decided to confirm the decision of the National Education Board Disciplinary Committee to dismiss the plaintiff from the Teaching Service. It is from that decision that the plaintiff has sought leave and the relief he seeks is that an order of certiorari be made against the Defendant to remove into this Court and quash the decisions of the Teaching Service Commission which confirmed the decision of the National Education Board to dismiss the plaintiff from the Teaching Service. The plaintiff's assertions are supported by two detailed reports (see Ann. "H" and "I"). The first one by the Principal of the Mount Hagen Technical College dated 8th of August 1995. The second one an Inspector's Report compiled and dated 28th and 29th August the same year...