Abdul Somad Bin Yahya v Lembaga Tatatertib Polis Diraja Malaysia Bukit Aman (WA-25-363-12/2020)

KERAJAAN MALAYSIA ...RESPONDEN-RESPONDEN JUDGMENT The Factual Background [1] The applicant joined the Royal Malaysia Police (“PDRM”) on 8.5.2016. [2] Upon completion of his basic training at the Malaysian Police Training Centre (PULAPOL), Kuala Lumpur, on 13.2.2017, the applicant was assigned to the Criminal Investigation Department (“CID”) at the IPD Petaling Jaya as an investigating officer with the rank of a probationary inspector. [3] On 27.8.2018, the applicant was instructed to serve at the Special Investigation Division (D9) of the CID at the IPD Petaling Jaya. Subsequently, on 22.10.2018, the applicant received a transfer order directing him to report for duty at the CID, IPD Taiping, as an investigating officer. The transfer order was dated 14.3.2019. The Disciplinary Action Against the Applicant [4] On 5.4.2018, a police report was lodged by ASP Salwani binti Samsudin against the applicant for being absent from duty for 21 days. The Report, referred to as Petaling Jaya Report No: 3970/18 inter alia, states as follows: Semakan telah dibuat yang mana terkesan dalam ketakpatuhan bahawa pegawai ini didapati tidak hadir tugas tanpa kelulusan Ketua Jabatan atau tanpa sebab yang munasabah selama 21 hari mulai 05 Mac 2018 hingga 04 April 2018. Saya mengesyaki bahawa pegawai ini tidak lagi berminat untuk bertugas di dalam pasukan Polis DiRaja Malaysia memandangkan pelbagai usaha telah dilakukan untuk beliau hadir tugas. [5] Following the police Report, an investigation paper was opened by ASP Farouk Fakhzan bin Mohd Nordin under s 86 of the Police Act 1967 for desertion. For context, s 86(1) provides as follows: Any police officer who, without reasonable cause, the onus of proof whereof shall rest with him, absents himself from duty for a continuous period of fourteen days or in circumstances which show that he has the intention of not returning to his duty shall be deemed to have deserted, and shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding twelve months. [6] The applicant’s salary was then forfeited pursuant to General Orders

[27] However, the applicant took exception to these assertions because it was later revealed to him that a similar Form (“1st Form”) was dated on the same date but signed by CP Dato’ Zamri bin Yahya. CP Dato’ Zamri was at the material time the Director of the Integrity and Standard Compliance Department (“JIPS”) of PDRM. According to the applicant, the discrepancy had given rise to illegality and procedural impropriety, which made the impugned decision void ab initio. [28] Was there any discrepancy in the procedures undertaken by the respondents? In reply to this alleged discrepancy, the Chairman of the DB, Mazlan, asserted in his further affidavit in Encl 60 (“AIR-60”) that the 2nd Form had not been utilised for the purpose of disciplinary proceedings against the applicant since it was cancelled by CP Dato’ Zamri. In the circumstances, only the 1st Form, referred to as “Penentuan Jenis Pelanggaran Tatatertib di bawah Peraturan 35 Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993” signed by IGP Tan Sri Hamid was used: [10.2] saya telah dimaklumkan bahawa penentuan oleh Pesuruhjaya Polis Dato’ Zamri bin Yahya tidak digunakan dan telah dibatalkan oleh Pesuruhjaya Polis Zamri bin Yahya kerana pada tarikh yang sama Ketua Polis Negara iaitu Tan Sri Dato’ Seri Abdul Hamid bin Bador telah membuat penentuan di bawah Peraturan 35 PU(A) 395/1993 sebagaimana yang dilampirkan di ekshibit “AH-2”, Kandungan 16. [29] The assertion made by Mazlan in AIR-60 is confirmed by CP Dato’ Zamri in his affidavit in reply in Encl 62 (“AIR-62”). In para 5.6 of AIR- 62, CP Dato’ Zamri asserted that since only one determination is needed under reg 35 on whether the disciplinary offence complained of warrants a punishment of dismissal or reduction of rank under reg 37 of the 1993 Regulations, he had cancelled his earlier determination in the 1st Form. CP Dato’ Zamri then directed that only the determination issued by IGP Tan Sri Hamid in the 2nd Form would be used for the purpose of disciplinary proceedings against the applicant. [30] For the aforesaid reason, CP Dato’ Zamri, in para 5.7 of his AIR-62, asserted that the determination he signed in the 1st Form was not forwarded to the 1st respondent for the purpose of determining whether there was a prima facie case. [31] I find the explanations made by Mazlan and CP Dato’ Zamri acceptable. The 1st Form was not forwarded. Only the 2nd Form, signed by IGP Tan Sri Hamid, was used. More importantly, I do not see any discrepancy in the affidavits of ACP Mazlan, CP Dato’ Zamri and IGP Tan Sri Hamid that had given rise to any illegality or procedural impropriety. [32] In any event, I cannot see how the alleged discrepancy, if at all, had prejudiced the applicant. Were the charges defective? [33] In his third complaint, the applicant contended that the disciplinary charges framed against him were defective and baseless on the following grounds:

The applicant was not paid the salary and emoluments from March 2018 to April 2019. In the circumstances, learned counsel for the applicant submitted that the charges for absenteeism were deemed baseless.

In any event, the disciplinary action against the applicant is based on additional charges not initially proffered. Learned counsel for the applicant contended that it is implied in the respondents’ affidavits that the applicant allegedly did not attend work at all between March 2018 and April 2019, thereby justifying the forfeiture of his salary. [34] In para 11 of his further affidavit in Encl 56 (“AIS-56”), the applicant affirmed as follows: [11] Sebagai menjawab kepada keseluruhan perenggan 6.16 ‘AJR(1)’, saya sesungguhnya percaya dan dinasihatkan oleh peguamcara saya bahawa pengataan deponen kini adalah pengataan/justifikasi ‘afterthought’ dan terjumlah kepada alasan baru yang tidak dipertuduhkan mengenai tarikh-tarikh ketidakhadiran yang dikatakan serta dikatakan ketiadaan catitan dalam Perharian/Diari Rasmi saya terutamanya di perenggan 6.16(d) dan 6.16((g)(i)(ii) dan 6.16(h) ‘AJR(1)’. [35] The question that arises is, are there any defects in the charges as reflected in the show cause letter issued to the applicant? To answer the question, reference must be made to reg 37(2) of the 1993 Regulations. Under reg 37(2), the show cause letter must contain:

The facts of the disciplinary offences alleged to have been committed by the applicant.

The grounds on which it is proposed to dismiss the applicant or to reduce his rank should be sent to the applicant.

The opportunity for the applicant to make a written explanation containing the grounds upon which he relies to exculpate himself within a period of 21 days from the date he is informed by notice of the charge. [36] I have gone through the letter to show cause and take note that the

Took cognisance that there existed a prima facie case against the applicant when he observed: ... setelah menimbang segala maklumat yang ada, mendapati wujud satu kes ‘prima facie’ terhadap anda yang telah mematutkan anda dikenakan tatatertib dengan tujuan “Buang Kerja” atau “Turun Pangkat” di bawah Peraturan 37....

There were ten disciplinary charges proffered against the applicant in para 2.1 to 2.10 of the show cause letter.

The applicant was given the right to make a written representation in answer to all the disciplinary charges against him: ... anda adalah dikehendaki mengemukakan satu representasi secara bertulis yang mengandungi alasan-alasan anda bergantung untuk membebaskan diri anda. Representasi tersebut hendaklah dikemukakan kepada saya selaku Pengerusi Lembaga Tatatertib melalui Ketua Polis Perak dalam tempoh 21 hari daripada tarikh anda menerima surat ini. [37] I find that the 1st respondent had complied with reg 37 of the 1993 Regulations. [38] In response to the show cause letter, the applicant, in a letter dated 14.1.2020, had requested the DB for an extension of time due to his illness and that he was preparing for his wedding reception. In the same letter, the applicant also sought for relevant documents to be forwarded to him. [39] The DB acceded to the request and in a letter dated 19.3.2020, furnished the applicant with the requested documents, which the applicant duly acknowledged. The applicant was also granted a 14- day extension of time: Lembaga Tatatertib dengan ini memberi perlanjutan tempoh 14 hari bagi anda mengemukakan representasi pembelaan mulai dari tarikh anda menerima dokumen-dokumen ini. [40] As alluded to earlier, the applicant eventually submitted his written representation to the DB on 27.5.2020. There is nothing in the written representation that indicated that the disciplinary charges against him were vague or that he did not in any way understand them. [41] With respect, I do not find the applicant’s argument on the alleged defective charges to be convincing. If he could ask for an extension of time to make his written representation, if he could request for the relevant documents related to the charges to be forwarded to him, surely, the applicant could have asked for further and better particulars of the charges if he found it to be wanting or defective. He did not. [42] I therefore hold that the charges against the applicant were not defective. [43] Under the circumstances, there was no violation of the principles of natural justice. Was there an Anisminic error and Wednesbury unreasonableness? [44] The applicant’s complaint is that the DB failed to consider his written representation, which is exculpatory in nature. The line of argument is that the applicant’s absence from work was due to him not receiving his salary from March 2018 to March 2019. In short, according to the applicant, the forfeiture of his salary and emoluments was not in accordance with the law. [45] More importantly, learned counsel for the applicant submitted that the applicant was punished twice. This indicates a case of double jeopardy – initially, the applicant’s salary and emoluments were forfeited and this was followed by his dismissal from service. [46] In any event, learned counsel for the applicant also contended that the disciplinary action against him was premature since a criminal action is still pending. [47] The issue is, to my mind, whether the applicant’s written representation had exculpated him. It is the applicant’s case that his salary was not paid from March 2018 to April 2019. The non-payment of salary resulted in the applicant being unable to come to work. According to the applicant, he had tried his best to go to work by borrowing from his friends. [48] What is pertinent is, did the applicant deny his absence from duty for the dates stated in the charges? In para 7(v) of his written representation, the applicant stated as follows: Saya juga merayu agar YDH DIG Dato’ Pahlawan dapat mempertimbangkan fakta bahawa dalam keadaan gaji yang ditahan serta terpaksa menebalkan muka meminjam dari rakan-rakan pun, saya tetap juga cuba sebaik mungkin untuk menghadirkan diri untuk bertugas untuk menghadirkan diri untuk bertugas pada kebanyakan hari dalam bulan Mei, 2018 hingga Oktober, 2018 dan bulan Januari, 2019 hingga April, 2019 tersebut. [49] I take note that there was no affirmative assertion by the applicant that he had actually attended work on the days stated in the charges that he was absent. What he did say in his written representation was that he tried his level best to attend work - cuba sebaik mungkin untuk menghadirkan diri untuk bertugas. [50] If indeed he did attend work on the days referred to in the charges – the simplest way to establish it is for the applicant to produce his Perharian/Diari Rasmi, the applicant’s Official Logbook, for the consideration of the DB. The respondents, through Mazlan bin Mansor, the Chairman of the DB, in AIR-17, affirmed as follows in para 6.16(d): Namun, Pemohon telah gagal untuk mengemukakan Perharian/Diari Rasmi bagi membuktikan bahawa beliau telah hadir bertugas bagi apa-apa jua tempoh masa pada masa dan di tempat Pemohon dikehendaki hadir bagi perlaksanaan tugas-tugasnya untuk membuktikan bahawa Pemohon layak dibayar gaji bagi tempoh Mac 2018 hingga Mac 2019. [51] According to Mazlan, the official logbook is given to all senior officers to record their movements, including when they are off-duty. The Official Logbook is used to monitor attendance at work and it is compulsory for senior officers to fill it out. The SOP is that the Official Logbook will be handed over to their respective senior officers to be cross-checked before it is signed. The Official Logbook will then be returned to the senior police officers for safekeeping. [52] In the circumstances, in order to be exculpated, the applicant should have exhibited his Official Logbook in his written representation. This is the best evidence available to the applicant. The Official Logbook must have been in his custody. Unfortunately, for reasons only known to him, the applicant did not exhibit the official log book in his written representation, which makes his assertion that he was present for work on certain days runs hollow. [53] The applicant has failed to adduce any evidence that he had been present and on duty at the required time and place for the performance of his duties. [54] As to the allegation of double jeopardy, the disciplinary action against the applicant was on charges of misconduct under the 1993 Regulations. On the other hand, the forfeiture of the applicant’s salary is an administrative action carried out pursuant to General Orders 1974 Chapter C. This is explained by Siti Maisarah binti Abd Karim in her affidavit in reply in Encl 64 (“AIR-64”) as can be seen in Exh SM-

Puan Siti Maisarah is the Assistant Administrative Officer, at the Salary Unit, IPK Selangor. The Unit had issued the Penyata Perubahan Mengenai Pendapatan Seseorang Pegawai with the remark: Lucut gaji dan emolumen kerana tidak hadir tugas tanpa cuti atau tanpa mendapat kebenaran atau tanpa sebab yang munasabah

Jika seseorang pegawai tidak hadir bekerja bagi sesuatu tempoh tanpa sesuatu sebab yang pada pendapat Ketua Jabatan adalah satu sebab yang munasabah, maka pegawai itu tidaklah berhak mendapat apa-apa gaji atau lain-lain emolumen bagi tempoh tidak hadir bekerja itu. [8] Subsequently, a disciplinary proceeding had been initiated against the applicant on the basis that the applicant had been absent from duty without leave, prior permission or without reasonable cause pursuant to reg 24 of the Public Officers (Conduct and Discipline) Regulations 1993 (“1993 Regulations”). It is to be read together with reg 4(2)(g), which states that an officer shall not be irresponsible. [9] A show cause letter dated 8.11.2019 was then issued to the applicant. There were ten disciplinary charges proffered against the applicant. The letter required the applicant to provide his written representation within 21 days of receipt of the same. [10] In response, the applicant submitted his explanation vide his letter dated 27.5.2020 (“written representation”). The gist of his explanation is that he was not given any notice, as required by law, regarding the forfeiture of his salary from March 2018 to March 2019. According to para 7(ii) of his letter, the applicant was not given any notice as per the requirement of reg 31(2) of the 1993 Regulations. For context, the regulation provides that:

An officer who is forfeited of his emoluments under this regulation shall be notified in writing regarding the said forfeiture. [11] The Disciplinary Board (“DB”), having considered the applicant’s representation, found that the applicant had failed to exculpate himself to the satisfaction of the Board. Consequently, the applicant was informed by a letter dated 6.8.2020 that he was found guilty of all ten disciplinary charges. The applicant was imposed with the punishment of dismissal on the 1st to 4th and 7th to 10th disciplinary charges effective from 29.7.2020. [12] As to the 5th and 6th charges, the applicant was imposed the punishment of a warning. The 5th charge relates to the applicant’s absence from duty on 3.8.2018 at the CID Division, IPD Petaling Jaya. The 6th charge is concerned with the applicant’s absence from duty for four days on 26th, 29th, 30th and 31st October 2018. Judicial Review [13] Aggrieved by the decision of the DB, the applicant commenced this application for judicial review to quash the same. Leave to commence this application for judicial review was granted by this Court on 3.5.2021. [14] In the application, the applicant inter alia sought the following reliefs:

An order of certiorari to quash the decision of the DB in dismissing the applicant from the PDRM effective from 29.7.2020 and that the applicant is still an employee of the

A declaration and/or mandamus to compel the applicant to be reinstated to his last position as an Inspector without the loss of seniority in rank, salary increment, salary arrears, emoluments and other benefits;

Further reliefs arising from the order of certiorari/ declaration/ mandamus that an enquiry be held for the purpose of determining the arrears in salary inclusive of salary increment, emoluments, allowances and other benefits that the applicant is entitled to receive from the date of dismissal i.e., 29.7.2020 and/or from the last date the applicant received his emoluments which is inclusive of arrears in salary and emoluments from March 2018 until March 2019. [15] The application is supported by the affidavit of the applicant in Encl 2 (“AIS-2”). [16] The grounds of the application can be summarised as follows:

The disciplinary action against the applicant is invalid due to the non-compliance with the applicable law, thereby contravening Art 5(1) of the Federal Constitution.

The disciplinary action against the applicant is tainted with illegality due to the presence of false and contradictory documents in relation to reg 35 of the 1993 Regulations.

There was a violation of the principles of natural justice due to defective disciplinary charges against the applicant.

There was an Anisminic error when the DB failed to consider the exculpatory nature of the applicant’s explanation in his written representation.

The DB failed to consider the doctrine of proportionality when meting out the punishment in the form of the dismissal against the applicant.

Failure to comply with reg 25 and reg 26 of the 1993 Regulations in that there was no communication from the Head of Department to the applicant to inquire about his status during the period of absence without leave from June 2018.

There was a procedural violation in the failure of the DB to provide reasons for its decision. Non-compliance of the applicable law [17] In his written representation, which is in Exh AS-4 of AIS-2, the applicant raised a preliminary issue concerning the legitimacy of the disciplinary action under reg 37 of the 1993 Regulations. The applicant stated as follows: Setelah dinasihati oleh peguam, saya percaya bahawa tindakan tatatertib di bawah peraturan 37 PPPA 1993 hanya terpakai dalam kes-kes yang melibatkan pegawai awam yang telah menghadapi prosiding jenayah di Mahkamah di bawah Peraturan 33 PPPA 1993 atau perintah tahanan, pengawasan atau bon seumpamanya di bawah Peraturan 36 PPPA 1993. [18] In short, in his written representation, the applicant challenged the legitimacy of the disciplinary action under reg 37 of the 1993 Regulations. According to the applicant, reg 37 only applies to cases involving civil servants subject to criminal proceedings under reg 33. [19] Before me, the learned Federal Counsel highlighted that the respondents’ position was that the impugned decision was based on the provisions outlined in the Gazette PU (A) 395/1993. On the other hand, learned counsel for the applicant submitted that the applicable Regulations would be PU(A) 246/2002 and not the one relied upon by the respondents. [20] It is therefore the applicant’s case that the wrong application of the law on the part of the respondents rendered the whole disciplinary proceedings illegal. Since the proceedings are tainted with illegality, learned counsel submitted that the whole exercise was in breach of Art 5(1) of the Federal Constitution, which guarantees no person shall be deprived of his life or personal liberty save in accordance with law. [21] Have the respondents committed an error of law in the course of conducting the disciplinary proceedings? Did the respondents cite the proper Regulations during the disciplinary proceedings? Reference can be made to Khalid Mat v Suruhanjaya Pasukan Polis Diraja Malaysia & Ors [2011] 7 CLJ 613. In that case, the applicant made an application for judicial review for an order of certiorari to quash the decision of the 1st respondent. The applicant, a chief inspector of the PDRM, was dismissed from the force by the 1st respondent for misconduct under the Public Officers (Conduct and Discipline) (Amendment) Regulations 2002 (“2002 Amending Regulations”). The applicant’s complaint was anchored inter alia on the ground that the show cause letter and the letter of notification of disciplinary punishment issued to the applicant referred to the 2002 Amending Regulations, but the affidavit filed for the 1st respondent referred to the 1993 Regulations. [22] Aziah Ali J (later FCJ) held that the 2002 Amending Regulations was an amending law to amend the existing legislation. The new provisions introduced vide the 2002 Amending Regulations formed part of and were to be construed as one with the 1993 Regulations. In short, the 1993 Regulations are still in force and remain the only regulations governing the conduct and the discipline of public servant until such time it is repealed. The learned Judge further held that the applicant's submission that there was confusion on which Regulations applied in that case was devoid of merit. [23] Applying the said proposition to the facts of the case, since the only Regulation in force is the 1993 Regulations, the respondents did not apply the wrong law in citing the relevant regulations to render the disciplinary proceedings illegal. [24] In the circumstances, there was no error on the part of the respondents in formulating the Charges under the 1993 Regulations instead of the 2002 Amending Regulations. The 1st respondent’s reference to reg 24 (Disciplinary action for absence without leave) and reg 37 (Procedure in disciplinary cases with a view to dismissal and reduction in rank”) was therefore correct in law. Whether there were false and contradictory documents [25] The second complaint of the applicant is the alleged presence of contradictory documents and testimonies that, according to him, severely undermined the credibility of the decision-making process. [26] According to the applicant, the Chairman of the DB, Mazlan Mansor, in his affidavit in reply in Encl 17 (“AIR-17”), asserted that the determination of the nature of the breach of discipline was carried out by the then IGP, Tan Sri Abdul Hamid bin Bador. This is in accordance with reg 35 of the 1993 Regulations. The assertion was confirmed by Tan Sri Abdul Hamid through his affidavit in reply in Encl 18 (“AIR-18”). Tan Sri Hamid signed the required Form (“2nd Form”) dated 26.8.2019 that: √ Pelanggaran tatatertib yang dilakukan oleh subjek adalah patut diambil tindakan dengan Tujuan Buang Kerja atau Turun Pangkat di bawah Per 37, PPPA (K & T)