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Abakaliki – His Lordship, Hon. Justice I. G. Nweneka of the National Industrial Court of Nigeria, sitting in Abakaliki, on Friday 8th 2019 in a judgment declared the dismissal of ALEXANDER FRIDAY EZE (claimant) by EBONYI STATE JUDICIAL SERVICE COMMISSION (defendant) as gross violation of the Public Service Rules.
The court set aside the entire disciplinary process, the finding and recommendation of the disciplinary committee and the letter of dismissal arising there from, and further ordered that the Claimant be reinstated with full benefits.
This action was commenced by a Complaint dated 20th September 2018 wherein the Claimant claimed against the Defendant among others; A declaration that the dismissal of the Claimant from the service of Ebonyi State Judicial Service Commission as contained in the Dismissal Letter dated 30/4/2018 based on allegation of gross misconduct for which he had earlier been punished by suspension without salary is unlawful and amounts to double punishment for the same misconduct. An order setting aside the Claimant’s dismissal from service.
Likewise, An order directing the Defendant to pay to the Claimant all his salaries, emoluments, benefits and grant to the Claimant all his rights and privileges including promotions, etc. which ought to have accrued to him if his service were [sic] not interrupted by virtue of his dismissal.
The Claimant was employed 1990 as Clerical Assistant and rose to Registrar Grade on 1st January 2007. He was posted to High Court, Ohaukwu Division as Court clerk and Interpreter until his transfer to Magistrate Court, Iboko on 4th May 2016. After his transfer, the Claimant lingered at Ohaukwu High Court because the presiding Judge promised to speak with the Chief Judge concerning his transfer.
On 10th April 2017, he was served query for his refusal to resume at Magistrate Court, Iboko. He answered the query but his answer was considered unsatisfactory, as a result, he was placed on three months’ suspension without pay. He was recalled from suspension on 31st July 2017 and directed to proceed to Magistrate Court Iboko. He complied and received an invitation to appear before a Disciplinary Committee to investigate an allegation of gross misconduct and found him culpable and recommended for his dismissal from service.
The Defendant argued that for the Claimant to refuse to proceed on transfer and absent himself from duty without leave amounted to serious misconduct and in view of that his dismissal is proper.
submitted that the suspension was in line with this Rule and the Claimant received his salary up to the time he was dismissed and as such cannot be said to have been punished twice for the same offence.
The Claimant learned Counsel explained that the Claimant was queried for refusal to proceed on posting/transfer but suspended for alleged gross misconduct and that the offence of refusal to proceed on transfer or to accept posting is categorized under “Misconduct” which carries a punishment of termination, retirement, reduction in rank, withholding or deferment of increment by virtue of Rule Public Service Rules, 2008.
Learned Counsel contended “that none of the alleged acts [refusal to proceed on transfer/posting or insubordination] for which the Claimant was purportedly investigated by the disciplinary committee and subsequently dismissed amounts to serious/gross misconduct under Rule Public Service Rules, let alone warranting a dismissal.
After careful evaluation of all the processes filed, and the submissions of the learned Counsel from both sides. The Court presided by Hon. Justice I. G. Nweneka held that the suspension of the Claimant without salary did not amount to full punishment for his alleged offence and is in continuation of disciplinary proceedings initiated against him, and further expressed thus;
"I have reviewed sections 3 and 4 of the Public Service Rules 2008 and agree with the submission of learned Counsel for the Claimant in his final written address that ‘misconduct’ under section 3 of the Public Service Rules is quite different from ‘serious or gross misconduct’ under section 4 of the Public Service Rules and cannot be used interchangeably.
"It is for this reason that I find the argument of learned Counsel for the Defendant on issue one of her reply to the Claimant’s final written address self-defeating.
"The Claimant was also not queried for ‘abscondment’ and the pleading of the Defendant and the testimony are at variance and reinforces the confusion as to the offence alleged against the Claimant and the offence for which he was investigated and eventually dismissed.
"In the circumstance, the finding and recommendation of the disciplinary committee of the Defendant cannot stand. The offence for which the Claimant was queried is different from the offence he was investigated and dismissed.
"On the whole, this action succeeds in part. I find and hold that the disciplinary proceedings against the Claimant is in gross violation of the Public Service Rules 2008.
"Consequently, I hereby make an order setting aside the Claimant’s dismissal from service and further order that the Claimant be reinstated forthwith with full benefits."
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