Azhan Haris Bin Ajidan v 1. ) Lembaga Getah Malaysia (BA-25-91-11/2020)

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KERAJAAN MALAYSIA …RESPONDEN-RESPONDEN DI DENGAR BERSAMA DENGAN DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SEMAKAN KEHAKIMAN NO.: BA-25-91-11/2020 Dalam perkara Azhan Haris bin Ajidan (No. K/P: 710715-10-6287) mendapatkan kebenaran perintah Certiorari; Dan Dalam Perkara Keputusan Jawatankuasa Tatatertib Lembaga Getah Malaysia, Kategori Ketua Pengarah, Timbalan Ketua Pengarah, Kumpulan Pengurusan Tertinggi dan Kumpulan Pengurusan Profesional Dengan Tujuan Buang Kerja atau Turun Pangkat bertarikh 11/3/2019 dan Keputusan Jawatankuasa Rayuan Tatatertib Lembaga Getah Malaysia, Kategori Ketua Pengarah, Timbalan Ketua Pengarah, Kumpulan Pengurusan Tertinggi dan Kumpulan Pengurusan dan Profesional Dengan Tujuan Buang Kerja atau Turun Pangkat bertarikh 21/6/2019; Dan Dalam perkara suatu permohonan di bawah Aturan 53, Kaedah-kaedah Mahkamah 2021 untuk inter alia, perintah Certiorari dan Mandamus ANTARA AZHAN HARIS BIN AJIDAN (No. K/P: 710715-10-6287) …PEMOHON

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KERAJAAN MALAYSIA …RESPONDEN-RESPONDEN JUDGMENT [1] There are two separate applications for leave for judicial review before me which are heard together. [2] I will deal with application No. 90 first. [3] The applicant in this case, had joined the putative 1st respondent, the Rubber Research Institute of Malaysia on 22.3.1988. After nearly 20 years of service in the 1st respondent Institute, the applicant was appointed as Director of Economic and Rubber Marketing Division on 1.1.2008. The applicant was promoted as the Deputy Director (Policy and Operation) in 2012. [4] On 8.2.2019, the applicant received a letter from the chairman of the Disciplinary Committee (“DC”) of the putative 1st respondent with a view to either dismiss him or make an order for a reduction in rank under Regn 35 of the Statutory Bodies Disciplinary Regulations (“the 2000 Regulations”). The 2000 Regulations which is part of the Second Schedule of the Statutory Bodies (Discipline and Surcharge) Act 2000 (“the SB Act”). For the said purpose, a disciplinary proceedings would be initiated against the applicant. [5] In the meantime, the applicant was also suspended from exercising his duties from 11.2.2019. [6] The DC had issued another letter dated the same day, which the applicant received on 9.2.2019. The said letter stated that the DC, after having deliberated all the information, was satisfied that there was a prima facie case on 10 separate charges against the applicant. The 10 separate charges were detailed in the said letter. [7] The applicant was given 21 days to make a written representation to the DC pursuant to regulation 35 of the 2000 Regulations. According to the applicant in para 13 of his affidavit in support (“AIS”), he had sent the written representation dated 28.2.2019 to the putative 1st respondent. [8] In a letter dated 11.3.2019, the DC informed the applicant that it had found the applicant guilty of the 10 charges against him. The DC had decided to dismiss the applicant. Para 2 of the letter dated 11.3.2019 (“the dismissal letter”) reads as follows: Sehubungan dengan itu pihak Jawatankuasa Tatatertib telah memutuskan bahawa hukuman BUANG KERJA dikenakan selaras dan mengikut Peraturan 40(g) Jadual Pertama

The applicant has filed this application for judicial review to inter alia quash the said decision of the DC. The applicant also seeks a declaration that he is still in the employment of the putative 1st respondent with the scheme of service of premier Grade B. 6 Application for Leave

Under O 53 r 3(3) of the Rules of Court 2012 (“ROC”), the applicant must give notice of the application for leave to the Attorney General's Chambers (“AGC”) and must at the same time lodge in the AGC copies of the statement and affidavits related to the application for judicial review.

The Attorney General (“AG”) objects to this application for leave.

The main objection of the AG is premised on O 53 r 3(6) of the ROC which reads: An application for judicial review shall be made promptly and in any event within three months from the date when the grounds of application first arose or when the decision is first communicated to the applicant.

It is not in dispute that the dismissal letter was received by the applicant on 14.3.2019, as can be seen in the acknowledgment section of the same, which was signed by the applicant.

The said decision relating to the applicant's dismissal was varied by the Disciplinary Appeal Committee (“DAC”) on 21.6.2019.

Since the time limit stated in O 53 r 3(6) is “within three months from the date when the grounds of the application first arose”, the last day that the applicant should have filed this application was 13.6.2019. It says as follows: Jawatankuasa Rayuan Tatatertib memutuskan mengubah hukuman BUANG KERJA kepada hukuman TURUN PANGKAT dari Gred Utama B (VU6) ke Gred Utama C (VU7)

The application for leave for judicial review is out of time since it is beyond the procedural requirement of 3 months from the date of the decision, which is the subject matter of review.

Even if the applicant has explained at length as to the reasons for the delay in his AIS, I do not regretfully accept his explanations due to the inordinate nature of the delay.

Since it is a jurisdictional issue, the failure to apply for an extension of time could not be cured by O 1A of the ROC. [22] The application for leave is therefore refused. Application No. 91 [23] In application No. 91, the applicant Encik Azlan Haris made the leave application for judicial review against his dismissal 20 months late. The leave application for judicial review against the decision of the DAC to reduce the applicant’s rank was made 17 months late. [24] The applicant was served on the decisions of the DC on 14.3.2019 and the DAC on 21.6.2019. [25] The applicant has attempted to explain the delay in para 60 of his AIS in Encl 2. I have gone through the explanation and take note that it was anchored on the applicant’s inability to seek legal advice due to the Movement Control Order (“MCO”). However, I take judicial notice that the MCO was only in place on 18.3.2020, well after the decisions of the DC and DAC were served on the applicant. The delay on the part of the applicant is inordinate and unacceptable. [26] The other main reason of the delay in filing the judicial review application is the financial constraint faced by the applicant as a result of his dismissal. I do not find this reason to be acceptable either. The reason is, the e-filing of the application for judicial review does not involve an astronomical amount of money since at all material times the applicant is acting in person. [27] The extension of time under O 53 r 3(7) of the ROC involves the exercise of my discretion. It cannot be exercised willy-nilly. It is trite that every discretion must be exercised judiciously and not arbitrarily. Unfortunately, as I indicated earlier, there is no material before me for me to exercise the discretion. [28] For the said reasons, the application for leave for the extension of time cannot be granted. In the absence of the extension of time, this Court has no jurisdiction to hear the application for judicial review. The judicial review application is not properly brought before the Court and must therefore be dismissed in limine. [29] I am making no order as to costs. Tarikh: 31 Ogos 2021. (DATO’ WAN AHMAD FARID BIN WAN SALLEH) Hakim Mahkamah Tinggi Shah Alam.