The Hon. President of the National Industrial Court, His Lordship, Hon. Justice Benedict Kanyip, PhD, FNIALS has set aside the purported dismissal of Mr. Ayodele Opaleye from the service; ordered the Nigeria National Petroleum Corporation to properly retire Opaleye with effect from 25 October 2005 with payment of gratuity and pension.
The court held that the dismissal of Mr. Opaleye by the NNPC was done in bad faith, malicious and outside of the law, and in utter disregard of the recommendation of the Investigative Panel.
From facts, the claimant- Mr. Ayodele Opaleye had submitted that the NNPC went outside the recommendation of his compulsory retirement from the service based on the allegation against him, and obtained the approval of the President of the Federal Republic of Nigeria to dismiss him from service, that he protested the unlawful dismissal through different fora without success, urged the court to grant the reliefs sought in the interest of justice.
In defense, the NNPC maintained that Opaleye was properly dismissed in line with the law that it did not act maliciously or in bad faith as the dismissal would serve as a deterrent to others, urged the Court to hold that the dismissal of the claimant upon being proven liable by the investigative panel for misconduct is not illegal.
The agency submitted that the investigation panel it raised acted as its agent for the said investigation. That being its agent, the agency is allowed by law to go beyond the powers given to the panel to investigate and make necessary recommendations.
The NNPC counsel, Chioma Nwankwo Esq proceeded that the dismissal of the claimant was not wrongful or in disregard of the recommendations of the Investigative Panel that the Public Service Rules governing the conditions and disciplinary actions against public servants provides for the dismissal of an employee as a disciplinary action for serious misconduct, urged the court to dismiss the case for lacking merit.
In opposition, Opaleye’s counsel, C. Ogalagu Esq averred that by not referring the allegation of fraud leveled against his client to the Police for investigation and subsequent charge to court before taking disciplinary measures that the agency jumped the gun, infringed on the provisions of the 1999 Constitution and accordingly, the recommendation made by the Investigative Panel and the consequential dismissal of the claimant by the defendant is a nullity, urged the court to so hold.
Delivering the judgment after careful evaluation of the submissions of both parties, the Hon. President of the Court, Justice Benedict Kanyip held that the defendant did not refer the Court to any specific rule that authorizes it to jettison the recommendation as to sanction of the Investigative Panel in favor of a higher sanction.
“In other words, the punishment for negligence is termination or retirement. It should be noted that I pointed out earlier that the defendant accepted the findings of the Investigative Panel. So, the defendant, in substituting the recommendation for retirement with dismissal, must be read to have acted, certainly not within the appropriate rule of PSR as it argued. This in itself is wrong of the defendant. I so hold.
“So, in coloring the claimant’s infraction as serious enough to warrant dismissal in the letter to Mr. President, the defendant went outside of the appropriate rule of the PSR and so acted wrongly. I so hold.
“Having set aside the dismissal, is the remedy of the claimant one of reinstatement or retirement? Rule 030301 of the PSR talks of only termination or retirement. Reinstatement is not mentioned or envisaged. Accordingly, relief (4) is grantable only in terms of retirement, not reinstatement. I so hold and grant.” Justice Kanyip Ruled.