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(i) An order of Certiorari to quash the decision of the 1st and 2nd appellants given by letter dated 4.9.2015 and received by him on 10.9.2015;
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Court of Appeal of Malaysia29 Mar 2018P-02(A)-1017-05/2017
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“authority to give the respondent a right of hearing as a criminal charge had been proved against him. To fortify her argument, learned counsel for the appellants referred us to Article 135(2) of the Federal Constitution (“the Constitution”) which provides as follows: “(2) No member of such a service as aforesaid shall”
“ation, nor for our consideration in the present appeal. [27] The failure by the appellants to give the respondent a reasonable opportunity of being heard was in clear breach of section 16(4) of the Local Government Act 1976 (“the LGA”) and Regulation 29(1) of the 1995 Regulations, both of which encapsulate the common l”
“de KP14 on 1.10.2011. [4] Unknown to the 2nd appellant, on 3.5.2010 the respondent was arrested by the police for being in unlawful possession of property (the source of which was unknown) under the Minor Offences Act 1955 (“the MOA”). [5] On 6.5.2010, the respondent was charged and he pleaded guilty to the offence in”
“respondent a right of hearing as a criminal charge had been proved against him. To fortify her argument, learned counsel for the appellants referred us to Article 135(2) of the Federal Constitution (“the Constitution”) which provides as follows: “(2) No member of such a service as aforesaid shall be dismissed or reduce”
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1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE CIVIL JURISDICTION) CIVIL APPEAL NO: P-02(A)-1017-05/2017 BETWEEN PIHAK BERKUASA TATATERTIB MAJLIS PERBANDARAN SEBERANG PERAI … PERAYU PERTAMA MAJLIS PERBANDARAN SEBERANG PERAI … PERAYU KEDUA DAN MUZIADI BIN MUKHTAR … RESPONDEN [Dalam Mahkamah Tinggi Malaya di Pulau Pinang Permohonan Untuk Semakan Kehakiman No: 25-84-12/2015 Dalam Perkara permohonan MUZIADI BIN MUKHTAR untuk kebenaran bagi memohon suatu perintah Certiorari; Dan Dalam Perkara Mengenai Keputusan Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai melalui surat bertarikh 04.09.2015 yang diterima pada 10.09.2015; Dan Dalam Perkara Peraturan-Peraturan Pegawai Awam Majlis Perbandaran Seberang Perai (Kelakuan Dan Tatatertib) 1995, Peraturan-Peraturan 27, 28, 29, 33, 34, 35, 36, 41, 43, 44, 45, 46 Dan 47; Dan Dalam Perkara Aturan 53, Kaedah-Kaedah Mahkamah 2012; Dan Dalam Perkara Seksyen 25 Akta Kehakiman 1964 Serta Jadual Kepada Akta Kehakiman 1964; 2 Dan Dalam Perkara Seksyen-Seksyen 16(4) Dan 17 Akta Kerajaan Tempatan 1976 Antara Muziadi Bin Mukhtar (No.K/P: 681020-07-5453) … Pemohon
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1. Dan Pihak Berkuasa Tatatertib
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2. Majlis Perbandaran Seberang Perai … Responden Pertama Majlis Perbandaran Seberang Perai … Responden Kedua Diputuskan oleh Yang Arif Hakim Tuan Lim Chong Fong pada 25 haribulan April, 2017] CORAM ABDUL RAHMAN SEBLI, JCA ZALEHA YUSOF, JCA MARY LIM THIAM SUAN, JCA JUDGMENT OF THE COURT [1] This appeal was against the decision of the High Court allowing the respondent’s application for judicial review against the decision of the 1st appellant dismissing the respondent from the employment of the 2nd appellant. We dismissed the appeal by a unanimous decision and these are our grounds. [2] The appeal concerns the effect of two conflicting provisions in a subsidiary legislation on the right of an employee of a local authority to be heard before he is dismissed from his employment. 3 [3] The facts as outlined by the learned judge are not in dispute and they are as follows, with the necessary modifications. The respondent was employed by the 2nd appellant as a Grade KP11 security guard with effect from 2.1.2008. He was promoted to the post of senior security guard Grade KP14 on 1.10.2011. [4] Unknown to the 2nd appellant, on 3.5.2010 the respondent was arrested by the police for being in unlawful possession of property (the source of which was unknown) under the Minor Offences Act 1955 (“the MOA”). [5] On 6.5.2010, the respondent was charged and he pleaded guilty to the offence in the Magistrates Court at Bukit Mertajam and was fined RM600.00. He paid the fine. According to the respondent, he had informed his superior officer, one Hazani bin Omar, of his plea of guilt and payment of the fine of RM600.00 in the afternoon of 6.5.2010 itself and that no action was taken against him by the 2nd respondent in connection with the case. [6] There is no record however in the office of the respondent’s head of department to show that the respondent had notified or informed his office of his conviction on 6.5.2010. The appellants’ case was that they had no knowledge of the respondent’s conviction. [7] Four years later in October 2014, the Yang Di-Pertua of the 2nd appellant received an anonymous letter pertaining to the respondent’s involvement in the crime resulting in his conviction by the Bukit Mertajam Magistrates Court. 4 [8] Accordingly, an investigation was carried out by the Head of the Management Services of the 2nd appellant. The 2nd appellant wrote two letters, one dated 18.9.2004 and the other dated 24.10.2004 to the Bukit Mertajam Magistrates Court to obtain information on the crime allegedly committed by the respondent. [9] The Bukit Mertajam Magistrates Court vide letter dated 30.10.2004 confirmed the respondent’s conviction under the MOA. As a result, the 2nd appellant set up an Internal Investigation Committee (“the IIC”) to investigate the allegation in the anonymous letter. [10] The IIC is an administrative committee established under the Public Officers Majlis Perbandaran Seberang Perai (Conduct and Discipline) Municipal Council of Province of Wellesley Regulations 1995 (“the 1995 Regulations”) before any disciplinary action is instituted against any officer or employee of the establishment. [11] The IIC carried out its investigation on 10.10.2014 and 15.10.2014, including a hearing on 17.10.2014 at which hearing the respondent admitted to having committed the offence he was charged with on 6.5.2010. He also admitted to concealing the information from the 2nd appellant. [12] Thereafter the IIC forwarded its report on the investigation to the Yang Di-Pertua of the 2nd appellant. The 2nd appellant then sent a report pursuant to Regulation 34 of the 1995 Regulations by memo dated 26.12.2014 to the 1st appellant. 5 [13] On 17.2.2015, the 2nd appellant submitted a paper to the 1st appellant to consider the appropriate punishment to be imposed on the respondent. The 1st appellant adjourned its consideration and requested for the submission of a performance appraisal report of the respondent from the 2nd appellant, which report was submitted to the 1st appellant by the 2nd appellant on 9.3.2015. [14] On 24.4.2015, the 2nd appellant submitted another paper to the 1st appellant to consider the appropriate punishment to be imposed on the respondent pursuant to Regulations 34, 38 and 39 of the 1995 Regulations. [15] At the meeting on 25.5.2015, the 1st appellant resolved to terminate the respondent’s employment “in the public interest” with effect from 2.10.2015. [16] Accordingly, the 1st appellant sent a letter dated 19.6.2015 to the respondent to terminate his employment in accordance with Regulation 50 of the 1995 Regulations, i.e. in the public interest. The respondent was required to submit certain documents for the purposes of calculating his pension and other retirement benefits. [17] By letter dated 26.6.2015, the respondent rejected the decision of the 1st appellant to terminate his employment in the public interest. Through his solicitor’s letter dated 19.8.2015, the respondent notified the 2nd appellant of his dissatisfaction with the termination of his employment. [18] Following the respondent’s rejection of his termination in the public interest, on 3.9.2015 the secretariat of the 1st appellant submitted a paper 6 to the 1st appellant to revoke the 1st appellant’s decision to terminate the respondent’s employment in the public interest. On the same date, it also prepared another working paper on the appropriate punishment to be imposed on the respondent. [19] At the meeting on 4.9.2015, the 1st appellant decided to revoke the termination of the respondent’s employment in the public interest with immediate effect. The respondent was notified by the 2nd appellant of this decision by letter dated 4.9.2015. The revocation letter reads: “PEMBATALAN PENAMATAN DEMI KEPENTINGAN AWAM Pihak Berkuasa Tatatertib, Majlis Perbandaran Seberang Perai di dalam mesyuaratnya yang ke-8/2015 pada 04 September, 2015, memutuskan Penamatan Demi Kepentingan Awam terhadap tuan sebelum ini melalui surat rujukan Bil.(87) dlm MPSP/10(P)9- 82/35(SULIT) bertarikh 19 Jun 2015 adalah dibatalkan berkuatkuasa serta-merta.” [20] By a letter of even date, the respondent was informed that he was dismissed in accordance with Regulation 39(g) of the 1995 Regulations (as opposed termination in the public interest decided earlier). The letter reads: “2. Sehubungan itu Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai di dalam mesyuaratnya yang ke – 8/2015 pada 04 Serptember 2015 adalah menimbang dengan teliti fakta kes dan kesalahan yang dilakukan oleh tuan, memutuskan bahawa tuan dengan ini dikenakan hukuman berikut mengikut Peraturan 39, Peratutan-Peraturan Pegawai Awam Majlis Perbandaran Seberang Perai (Kelakuan & Tatatertib) 1995. 39(g) Buang Kerja
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3. Hukuman adalah berkuatkuasa mulai tarikh penerimaan surat ini. Sila tuan akui penerimaan surat ini dengan menandatangani Surat Akuan Terima yang disertakan dan dikembalikan.” 7 [21] Thus, instead of termination of service in the public interest with full pension and retirement benefits, which the respondent rejected and which the 1st appellant revoked, the respondent was now dismissed with no such benefits. [22] Dissatisfied with the decision, the respondent applied for judicial review to quash the decision. His application was allowed by the High Court, hence the present appeal by the appellants. The orders that he had sought, inter alia, were the following:
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(i) An order of Certiorari to quash the decision of the 1st and 2nd appellants given by letter dated 4.9.2015 and received by him on 10.9.2015;
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(ii) A Declaration that his dismissal was null and void, not effective and to be be set aside, and that he was to maintain his status quo in his original post as Senior Security Guard (‘Pengawal Keselamatan Kanan’) Grade KP14 with all benefits; and
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(iii) Damages. [23] There is no dearth of authority on the principle of law relating to judicial review, amongst them the following cases referred to by the learned judge in his grounds of judgment: Mamat Talib (Timbalan Ketua Polis, Johor) & Anor v Abdul Jalil Rashid [2005] 4 CLJ 892; M Sentivelu a/l R Marimuthu v Public Services Commission Malaysia & Anor [2005] 5 MLJ 393; Public Services Commission Malaysia v Vickneswary a/p RM Senthivelu (substituting M Senthivelu a/l R Marimuthu. Deceased) [2008] 8 6 MLJ 1; R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145; Datin Azizah bte Abdul Ghani v Dewan Bandaraya Kuala Lumpur & Ors And Another Appeal [1992] 2 MLJ 393; Kerajaan Malaysia v Wong Pot Heng & Anor [1997] 1 MLJ 437; Subramaniam a/l Sanasy v SAC II Syed Alwi bin Syed Hamid & Anor [2004] 4 MLJ 415. [24] These cases may not be exactly on point as they are not cases dealing with a situation where the dismissal of the employee was based on his conviction of a criminal offence as in the appeal before us but the general principles on the right of hearing discussed in those cases are still relevant and applicable. [25] It was common ground that the respondent was not given the opportunity of being heard before he was dismissed by the appellants. This is clear from the affidavits affirmed by the respondent and the appellants during the judicial review application. [26] Nor was it disputed that the respondent did not receive any warning, suspension, show cause letter or any letter from the appellants before he was dismissed from his employment. So, the question whether or not the respondent was given a right of hearing before he was dismissed did not arise for the High Court’s consideration, nor for our consideration in the present appeal. [27] The failure by the appellants to give the respondent a reasonable opportunity of being heard was in clear breach of section 16(4) of the Local Government Act 1976 (“the LGA”) and Regulation 29(1) of the 1995 Regulations, both of which encapsulate the common law concept of audi alteram partem (hear the other side). For ease of reference we reproduce 9 below section 16(4) of the LGA and Regulation 29(1) of the 1995 Regulations: Section 16(4) of the LGA “(4) The Commissioner of the City of Kuala Lumpur in the case of the Federal Territory, or the Mayor or President or his representative who shall be a Councillor, the Secretary and one other Councillor in the case of other local authorities, may appoint such persons to the offices shown on the list so approved and may reduce in rank or dismiss such persons from office and may appoint others in their stead: Provided that the reduction in rank or dismissal from office of any Head of Department or his Deputy shall not take effect until such reduction in rank or dismissal has been confirmed by the State Authority: Provided further that no officer or employee shall be reduced in rank or dismissed without being given a reasonable opportunity of being heard.” Regulation 29(1) of the 1995 Regulations “29.(1) The Disciplinary Authority sitting to consider a case where the breach of discipline complained of has been found to be of a nature which merits a punishment of dismissal or reduction in rank shall consider all the available information and where it appears that there is a prima facie case against the officer for dismissal or reduction in rank, the Disciplinary Authority shall direct that a statement containing the facts of the breach of discipline alleged to have been committed by the officer and any proposed ground on which the officer is to be dismissed or reduced in rank be sent to the officer and shall call upon him to make a written representation, containing the grounds upon which he relies to exculpate himself, within a period of not less than twenty-one days the date of receipt of the charge.” [28] Despite the clear provisions of section 16(4) of the LGA and Regulation 29(1) of the 1995 Regulations, learned counsel for the appellants contended that it was not a legal requirement for the respondent to be given a right of hearing, citing sub-regulation 25(2)(a) of the 1995 Regulations. For context, we reproduce below both sub-regulation (1) and sub-regulation (2) of Regulation 25: 10 “(1) Subject to the provision of sub-regulation (2), no officer shall be dismissed or reduced in rank in any disciplinary proceedings under this Part unless he has been informed in writing of the grounds on which it is proposed to take action against him and has been afforded a reasonable opportunity of being heard.
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(2) Sub-regulation (1) shall not apply in the following cases –
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(a) where an officer is dismissed or reduced in rank on the ground of conduct in respect of which a criminal charge has been proved against him;” [29] Sub-regulation 25(2)(a) of the 1995 Regulations appears, on the face of it, to support the appellants’ contention that there was no need for the disciplinary authority to give the respondent a right of hearing as a criminal charge had been proved against him. To fortify her argument, learned counsel for the appellants referred us to Article 135(2) of the Federal Constitution (“the Constitution”) which provides as follows: “(2) No member of such a service as aforesaid shall be dismissed or reduced in rank without being given a reasonable opportunity of being heard: Provided that this Clause shall not apply to the following cases:
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(a) where a member of such a service is dismissed or reduced in rank on the ground of conduct in respect of which a criminal charge has been proved against him;” [30] The question for our determination was whether Regulation 25(2)(a) of the 1995 Regulations read in conjunction with Section 17(1) of the LGA and Article 135(2) of the Constitution nullified the respondent’s right to be heard accorded to him by section 16(4) of the LGA and Regulation 29(1) of the 1995 Regulations. 11 [31] There can be no argument that Regulation 25(2)(a) of the 1995 Regulations is in conflict with both section 16(4) of the LGA and Regulation 29(1) of the 1995 Regulations. Whilst the latter two provisions provide for a right of hearing before an employee is dismissed from his employment, the former provides for the complete opposite. This is a classic case of the left hand taking away what the right hand has given. [32] On behalf of the appellants, the main plank of learned counsel’s argument was that section 16(4) of the LGA must be read subject to Regulation 25(2)(a), which was made under section 17(1) of the LGA. Counsel went so far as to argue that section 16(4) is “dependent” on section 17(1). What counsel meant to say, for all intents and purposes, was that having regard to the provisions of section 17(1) of the LGA, Regulation 25(2)(a) of the 1995 Regulations overrides not only Regulation 29(1) but also section 16(4) of the LGA. [33] To this argument, we need only say that a subsidiary legislation cannot be inconsistent, let alone override an Act of Parliament. Regulation 25(2)(a) of the 1995 Regulations is therefore void vis-à-vis section 16(4) of the LGA, which is an Act of Parliament: See section 23(1) of the Interpretation Acts 1948 and 1967 which provides: “(1) Any subsidiary legislation that is inconsistent with an Act (including the Act under which the subsidiary legislation was made) shall be void to the extent of the inconsistency.” [34] This provision was dealt with by the Supreme Court in Datin Azizah bte Abdul Ghani (supra) where Abdul Hamid Omar LP delivering the judgment of the Court said at pages 398-399: 12 “In our view it is a settled policy of the legislature that an Act of Parliament lays down the general principles of the law and to delegate to subordinate authorities the power of making rules for the purpose of settling administrative details and of providing the necessary procedures for giving effect to the general principles of the Act. When, therefore, an Act of Parliament enables an authority to make regulations, a regulation which is validly made under the Act, must be regarded as though it were itself an enactment. But any rule made under an Act of Parliament cannot be intended to override the specific provisions of the Act itself. Under ss. 23 and 87 of the Interpretation Acts 1948 and 1967 (Act 388), any rule which is inconsistent with an Act of Parliament is void to the extent of the inconsistency.” [35] Section 17(1) of the LGA stipulates as follows: “(1) A local authority may, with the approval of the State Authority, from time to time make rules for the purpose of maintaining good conduct and discipline among officers and employees, and may impose any punishment upon any such officer or employee who is guilty of misconduct or breach of duty in the exercise of his official functions: Provided that no punishment shall be imposed on any Head of Department or his Deputy without the prior approval of the State Authority.” [36] Learned counsel for the appellants was right of course in pointing out that Regulation 25(2)(a) was a rule that was made by the 2nd appellant under section 17(1) of the LGA with the approval of the State Authority and for the purpose specified in section 17(1), namely: “for the purpose of maintaining good conduct and discipline among officers and employees.” [37] It was further submitted by learned counsel for the appellants that section 16(4) of the LGA is a general provision, and being a general provision, it must give way to section 17(1) under which Regulation 25(2)(a) was made by the local authority for the specific purpose of 13 maintaining good conduct and discipline among officers and employees of the 2nd appellant. [38] Before we delve further into the conflict between Regulation 25(2)(a) and Regulation 29(1) of the 1995 Regulations, we think it is appropriate at this juncture to deal straight away with Article 135(2) of the Constitution which learned counsel for the appellants relied on for her proposition that since the respondent had been convicted of a criminal offence, he had no right to be heard before he could be dismissed from his employment. The basis for the argument was that Regulation 25(2)(a) of the 1995 Regulations is “similar in context” to Article 135(2) of the Constitution. [39] With due respect to learned counsel, we must say at the outset that her reliance on Article 135(2) of the Constitution was misconceived. First of all, it was common ground that the respondent is not a public servant under Article 132(1) of the Constitution. This was acknowledged by the appellants themselves through learned counsel’s submission as follows: “Article 135(2) of the Federal Constitution does not apply to employees or officers of Local Authorities as service in the Local Authorities does not come within Clause 1 of Article 132 of the Federal Constitution.” [40] It was therefore not open to the appellants to now say otherwise. They cannot be allowed to approbate and reprobate on the issue. Furthermore, it was not the appellants’ position, nor was it their pleaded case that Regulation 29(1) of the 1995 Regulations is ultra vires section 16(4) and section 17(1) of the LGA, or Article 135(2) of the Constitution and therefore invalid. 14 [41] Coming back to learned counsel for the appellants’ argument that section 16(4) of the LGA must be read subject to section 17(1) of the LGA, we found nothing of substance to the argument. In the first place, section 16(4) does not say that it is subject to section 17(1) or to any regulation made thereunder. The legislature would have said so if it had so intended. In the absence of such qualification, there was no basis for learned counsel to suggest that section 16(4) is subject to section 17(1) or worse, “dependent” on it. [42] In our view, in a situation of statutory conflict as in the present case, a construction that favours the employee must be given, more so where the employee’s livelihood is at stake. In the context of the present appeal, the respondent must be given the benefit of section 16(4) of the LGA and Regulation 29(1) of the 1995 Regulations which accord him a right of hearing, rather than to subject him to the provisions of Regulation 25(2)(a) which denies him of that right. [43] It is important to bear in mind that both Regulation 25(2)(a) and Regulation 29(1) of the 1995 Regulations were made under the same section of the LGA, i.e. section 17(1). It was therefore untenable for the appellants to argue that Regulation 25(2)(a) must take precedence over Regulation 29(1) on the ground that it was made for the purpose of maintaining good conduct and discipline among officers and employees of the 2nd appellant. [44] The fallacy of the argument lies in the fact that it could equally be argued that Regulation 29(1) prevails over Regulation 25(2)(a) as it provides, in unequivocal language and without qualification, that the employee is to be accorded a right of hearing before he is dismissed from 15 his employment. In this regard, it is relevant to note that Regulation 29(1) comes after Regulation 25(2)(a). [45] Regulation 25(2)(a) which circumscribes the employee’s right of hearing cannot in our view be construed as overriding or nullifying Regulation 29(1) to the detriment of the respondent. There is, of course, the possible argument that Regulation 25(2)(a) deals with the specific scenario of a proven criminal charge and that in such a case no reasonable opportunity of being heard as required by Regulation 29(1) needs to be given, generalia specialibus non derogant. [46] But that, in any event, does not answer our view that it is void for being inconsistent with section 16(4) of the LGA. A void provision has no effect in law. The fact that it is “similar in context” to Article 135(2) of the Constitution as submitted by learned counsel for the appellants is of no consequence if otherwise it is void and has no legal effect. [47] It is up to the local authority, in this case the 2nd respondent, to rectify the situation if it deems it necessary so to do. Unless and until this is done, it is grossly unfair to deny the respondent of the right of hearing accorded to him by section 16(4) of the LGA and Regulation 29(1) of the 1995 Regulations. [48] In the circumstances, we endorse the learned judge’s view that it was mandatory for the appellants to serve a show cause notice on the respondent and affording him a reasonable opportunity of being heard as required by Regulation 29(1) of the 1995 Regulations. Their failure to do so rendered the decision to dismiss the respondent unsustainable in law. 16 [49] It was for all the reasons aforesaid that we unanimously dismissed the appellants’ appeal and affirmed the High Court decision. Signed ABDUL RAHMAN SEBLI Judge Court of Appeal Malaysia Dated: 5 December 2018. For the Appellants: Karin Lim, Murugan a/l D Maniam and Cyrus Lim Kia Chun of Messrs Pesgrave & Mathews. For the Respondent: Selvarani a/p Naramasivoo @ S. Paramasivam of Messrs Selvarani Naramasivoo & Co.
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