Dr. Akinlade Ore Falomo Vs Lagos State Public Service Commission (1977)

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IDIGBE, JSC.

This appeal is from the judgment of the High Court of Lagos State holden in Lagos (Adefarasin, Ag. CJ., as he then was) dated the 13th day of November, 1974 by which he dismissed the appellant’s application for an order of certiorari to remove into the High Court of Lagos State for the purpose of being quashed, the decision of the Lagos State Public Service Commission dismissing the applicant, the appellant herein (Dr. Akinlade Ore Falomo), from the public service of the Lagos state.

Briefly, the material facts which form the background to the said application by appellant – as they appear from a number of affidavits and documents exhibited in the court below and from the oral testimony received in that court and which the learned trial Judge    accepted – are as follows: The appellant was at all time material to the proceedings in the lower court employed in the Public Service of Lagos State and was posted to the Island Maternity Hospital Lagos as an “unconfirmed” Medical Officer Grade II (i.e., he was employed in that capacity on a month to month basis).Prior to the incident on account of which he (the appellant) was dismissed by the Public Service Commission, the respondents herein, there had been series of complaints by his immediate Superior Officers some of which had been brought to his notice and in respect of which he made representations to the immediate Head of his Department – the Permanent Secretary in the Lagos State Ministry of Health. Some of these complaints concern allegations of gross acts of professional misconduct and others relate to alleged criminal offences. However, the material complaint leading to his dismissal from service was that he was absent from duty without permission (i.e. without leave or any cause) between the 15th and the 22nd day of April, 1974. While still absent from duty, the appellant on the 23rd day of April, 1974, sent to his Department a medical certificate purporting to “excuse him from duty” for a period of seven days beginning from the 23rd day of April, 1974.

During the period between 15th and 22nd April, 1974, the appellant was seen at a meeting and public seminar held at Enugu in the then East Central State. There were some unsuccessful efforts made by his immediate “boss”, the medical consultant to whom he was immediately subordinated, to obtain from him some explanation for his conduct; in this connection, a note was addressed to him inviting his explanation for his absence from duty. At first, he refused to accept the note but later, when subsequent notes were sent to him inviting his explanation he could not be found to be served with these notes.

The appellant, not being on duty, could not be found in the premises of the hospital and all efforts to find him in his normal place of abode failed. In the circumstances, the Head of the Department – the permanent secretary in the Lagos State Ministry sent a very detailed report supported with written complaints from other doctors who normally worked with the appellant in the Lagos Island Maternity – including a report from the Chief Consultant to whom the appellant was subordinated – to the respondents who, by their letter of 13th May, 1974, addressed to him, dismissed the appellant from the public service of Lagos State; parts of that letter (exhibited as Exhibit 11) read:-  

“Dismissal from Service  I am directed to inform you that contrary to Regulation 52 of the Lagos State Public Service Commission (Proceedings) Edict No. 1 of 1969 and consequent upon the report made against you in this particular regard, the Commission has found you guilty of the offence of absenting yourself from duty without leave or reasonable cause from “the 15th to the 22nd of April, 1974, the penalty of which is dismissal. You are therefore dismissed from the Lagos State Public Service with effect from the day following the date of your receipt of this letter.    (Sgd) L. OSIKOMAIYA Secretary”.

On receipt of this letter (Exhibit 11), the appellant in exercise of his right under the proviso to Regulation 52 of the Public Service Commission (Proceedings), Edict No.1 of 1969 (hereinafter referred to as the “Public Services Commission Edict”) by a letter of 20th May, 1974, (Exhibit OSH 4 in these proceedings), addressed to the Secretary to the Public Service Commissions denied the accusation and allegation that he was absent from duty during the relevant period, adding that he was never asked for his explanation for being absent from duty, and asked that “disciplinary proceedings” in respect of his alleged absence from duty be instituted without delay;he added that he “was fully prepared with facts and figure to prove beyond reasonable doubt that at all material times” he was on duty. Finally, he asked in Exhibit OSH 4 that “the proviso contained in regulation 52 of the Public service Commission (Proceedings) Edict No.1 of 1969 be invoked” in his favour and that the order “for dismissal be revoked”. Without waiting for the outcome of his letter of 20th May, 1974, (Exhibit OSH 4) the appellant commenced these proceedings.  

In the course of his judgment, the learned Acting Chief Judge of the High Court of Lagos State made the following observation:   “…………………. It seems to me that the provision of Section 52 of the Edict is enacted to cover the type of case in which the officer is absent from his duty and cannot be found in which case his employers have responsibility for acting swiftly; the power conferred here seems to me to be in the nature of an emergency power which dispenses with the requirement for calling for the explanation of the employee especially where he cannot, with diligence be found.

The language of the proviso to the section makes it plain that the employee still has an opportunity, at a later stage, to explain the circumstances of his absence and his failure to inform employers of his whereabout. In such event a lesser punishment than dismissal may be imposed …………….. ……………..Counsel urged me to hold that even under Regulation – 52 the respondent had a responsibility to call for explanation of the applicant before dismissing him. I do not doubt that the respondents had such a responsibility if the servant eventually turns up and seeks an opportunity to explain the circumstances leading to his absence from duty without leave.

Nonetheless I am of the firm view that in the circumstances in which a public servant absents himself without cause from duty and cannot be found, the Public Service Commission has no responsibility to seek him first and inquire into the reasons for his absence. The Commission has the clear duty to dismiss him as it has done in this case but such dismissal would not be irrevocable ……………………………If this had been a straight forward case of dismissal for (other type of ) serious misconduct I would have been able to hold that the Public Service Commission had a duty to satisfy the requirements of the principles of natural justice and to have first obtained the explanation of the officer before deciding (to dismiss him) …………………” ).

We pause, however, to observe that in the foregoing passage, the use of the words “section” and “Regulation” with regard to the Public Service Commission Edict, although, somewhat indiscriminate, they, in each case, refer to Regulation 52 of that Edict. A number of grounds of appeal were filed and argued before us, in support of this appeal.

The sum of the arguments and submissions on behalf of the appellant is this: The exercise of the powers of the Public Service Commission (hereinafter referred to as “the Commission”) under Regulation 52 of the Public Service Commission Edict is a quasi – judicial one and that the Commission was not only under a duty to observe the principle of audi alteram partem under the Rules of Natural Justice, it was, also bound, to observe the said principle before dismissing the appellant from the Public Service of the Lagos State; since it failed to do so, the order of certiorari must issue to quash the said order of dismissal of the appellant by the Commission.   We think it is necessary at this stage to set out in detail the relevant law which brough the Commission into existence and, also, the relevant powers of the Commission under the Public Service Commission Edict.

The Commission came into existence by virtue of Section 4 of the Lagos State (Interim Provisions) Decree 1968, No. 13 of 1968 and the powers of the said Commission are clearly stated in Section 5 of the said Decree; and both of these read:-   “4(1) There shall be a Public Service for Lagos State, which shall consist of a Chairman and not less than two no more than four other members. 5 (1) Power to appoint persons to hold or act in offices in the public service of Lagos State (including power to make appointments or promotion and transfer and to confirm appointments) and to dismiss and exercise disciplinary control over persons holding or acting in such offices shall, subject to Section 6 of this Decree in respect of permanent secretaries, vest in the Public Service Commission of the State………………….   Regulations 55 and 58 make detailed provisions for the procedure for the dismissal of public officers on grounds of misconduct alleged against them and these clearly require that not only must the specific charges made against them be brought specifically to their notice and attention, they must also be given a chance of hearing (i.e., to make explanations and also defend themselves against the charges, if they so desire) before they can be dismissed on grounds of such alleged misconduct.

Under these provisions aforesaid these officers must be allowed access to any documents containing allegations against them and they have a right to examine witnesses, if any, who give oral testimony against them before any decision to dismiss or penalise them in any way as a result of such allegation of misconduct can be made. Regulation 52, however, makes special provision for allegation of the misconduct of being absent from duty without leave or reasonable cause; and it reads:-   “Without prejudice to the power to institute disciplinary proceedings in respect of any absence from duty without leave or reasonable cause, where a public officer is absent from duty without leave or reasonable cause the disciplinary authority may dismiss him without following the procedure prescribed in Regulation55 or 58.