Dato’ Dr Mohamad Rameez Bin Yahaya v Lembaga Tatatertib Perkhidmatan (W-01(A) -275-05/2019)

LEMBAGA TATATERTIB PERKHIDMATAN

LEMBAGA RAYUAN TATATERTIB PERKHIDMATAN AWAM, SURUHANJAYA PERKHIDMATAN AWAM MALAYSIA … RESPONDEN-RESPONDEN (DALAM MAHKAMAH TINGGI MALAYA DIKUALA LUMPUR (BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS) PERMOHONAN SEMAKAN KEHAKIMAN NO. WA -25-196-08/2018 Dalam Perkara Keputusan Lembaga Tatatertib Perkhidmaatan Awam Kumpulan Pengurusan (No.1) bertarikh Mei 6 April 2017 melalui surat bertarikh 17 Mei 2017 (“Keputusan Syak Pertama”) Dan Dalam Perkara Keputusan Lembaga Rayuan Tatatertib Perkhidmatan Awam (Suruhanjaya Perkhidmatan Awam) bertarikh 19.3.2018 melalui surat bertarikh 27 Mac 2018 (“Keputusan Syak Kedua”) Dan 2 Dalam Perkara Artikel 5,8 dan 132(2) Perlembagaan Persekutuan Dan Dalam Perkara Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993 [P.U.(A) 395/1993] dan Peraturan-Peraturan Lembaga Tatatertib Perkhidmatan Awam 1993 [P.U.(A) 396/1993] Dan Dalam Perkara Jadual Akta Mahkamah Kehakiman 1964 Dan Dalam Perkara Aturan 53 Kaedah-Kaedah Mahkamah 2012 ANTARA DATO’ DR. MOHAMAD RAMEEZ BIN YAHAYA … PEMOHON

LEMBAGA TATATERTIB PERKHIDMATAN

LEMBAGA RAYUAN TATATERTIB PERKHIDMATAN AWAM, SURUHANJAYA PERKHIDMATAN AWAM MALAYSIA … RESPONDEN-RESPONDEN) 3 CORAM: BADARIAH BINTI SAHAMID, JCA SURAYA BINTI OTHMAN, JCA LAU BEE LAN, JCA JUDGMENT OF THE COURT INTRODUCTION [1] This is an appeal by the Appellant/Applicant against the decision of the High Court at Kuala Lumpur, delivered on 15.05.2019 which dismissed the Applicant’s judicial review application under Order 53 Rules of Court (ROC 2012) seeking inter alia the following reliefs:

(a) an order of certiorari to quash the decision of the Disciplinary Board for the Managerial Group (No. 1) (‘Disciplinary Board’) dated 06.04.2017, which found the Applicant guilty of a disciplinary misconduct and imposed the punishment of a salary reduction of three salary scales for a period of 36 months; and/or

(b) an order of certiorari to quash the decision of the Disciplinary Appeal Board, Public Service Commission (‘Disciplinary Appeal Board’) 4 dated 19.03.2018 which affirmed the decision of the Disciplinary Board on 06.04.2017. BACKGROUND FACTS [2] The narration of the salient facts is derived from the learned Judge’s ‘Judgment’, with suitable modifications. [3] For ease of reference, parties will be referred to as they were in proceedings before the High Court. [4] The Applicant is an Administrative and Diplomatic officer (‘Pegawai Tadbir dan Diplomatik’) and the Director of Jabatan Perancangan Dasar dan Penyelarasan, Ministry of Foreign Affairs, Wisma Putra, Putrajaya. [5] Prior to his current position, the Applicant was serving at the office of the Consulate General of Malaysia in Melbourne, Australia from 26.06.2011 to 11.9.2015. He was then posted to Chile as Malaysia’s Ambassador until 2018 when he was transferred back to Malaysia to hold the current position. 5 [6] By a letter dated 29.9.2015, the Applicant was issued a show cause letter which contained two charges of misconduct as follows: PERTUDUHAN PERTAMA “Bahawa Y.Bhg. Dato’ Dr. Mohamad Rameez Yahaya, No. Kad Pengenalan 690804-08-6489, Pegawai Tadbir dan Diplomatik Gred M54, Duta Besar Malaysia ke Chile, Kementerian Luar Negeri semasa bertugas sebagai Pegawai Tadbir dan Diplomatik Gred M54, Konsul Jeneral, Konsulat Jeneral Malaysia di Melbourne, Australia, Kementerian Luar Negeri, mulai 26 Jun 2011 hingga 11 September 2015 telah melantik sepupu Y.Bhg. Dato’ iaitu Mohamad Azian Bin Abdul Rasheed, No. Passport A 24905656 sebagai pemandu bagi Konsulat Jeneral Malaysia di Melbourne, Australia bagi tempoh satu (1) tahun bermula dari 14 November 2011 sehingga 13 November 2012 melalui kontrak yang dibuat pada 1 November 2011. Perbuatan Y.Bhg. Dato’ tersebut bertentangan dengan perkara 1.1 Pekeliling Perkhidmatan Pentadbiran Bilangan 4 Tahun 1981, Kementerian Luar Negeri yang menyatakan – 6 ‘Sekiranya sesuatu kekosongan tidak dapat diisikan oleh warganegara tempatan atau asing yang bermastautin dengan sah di sesuatu tempat, warganegara Malaysia bolehlah dilantik dengan syarat mendapat kelulusan bertulis terlebih dahulu daripada Kementerian. Semasa mengemukakan cadangan ini pihak perwakilan adalah dipinta menyertakan satu surat akuan ditandatangani oleh Ketua Canseri yang mengesahkan:

(i) Warganegara tersebut bukan saudara mara mana-mana pegawai atau perwakilan’. Perbuatan Y.Bhg. Dato’ juga boleh ditafsirkan sebagai menyebabkan kepentingan peribadi bercanggah dengan tugas awam iaitu melanggar peraturan 4.2 (b) P.U. (A) 395/1993 yang menyatakan seperti berikut – “4. (2)Seseorang pegawai tidak boleh –

(b) berkelakuan dengan sedemikian cara yang mungkin menyebabkan kepentingan peribadinya bercanggah dengan tugas awamnya”. 7 PERTUDUHAN KEDUA “Bahawa Y.Bhg. Dato’ Dr. Mohamad Rameez Yahaya, No. Kad Pengenalan 690804-08-6489, Pegawai Tadbir dan Diplomatik Gred M54, Duta Besar Malaysia ke Chile, Kementerian Luar Negeri semasa bertugas sebagai Pegawai Tadbir dan Diplomatik Gred M54, Konsul Jeneral, Konsulat Jeneral Malaysia di Melbourne, Australia Kementerian Luar Negeri, mulai 26 Jun 2011 hingga 11 September 2015 telah melantik syarikat Southbank Office Fitout and Furniture untuk menjalankan kerja-kerja Fit-Out dan ubahsuai pejabat Konsulat General Malaysia di Melbourne, Australia melalui surat bertarikh 28 Oktober 2011 sedangkan Mesyuarat Jawatankuasa Perumahan Perwakilan (JKPP) MALAWAKIL Melbourne, pada mesyuarat bertarikh 10 Oktober 2011 yang dipengerusikan oleh Y.Bhg. Dato’ sendiri, telah memilih Syarikat IRM Interiors PTY LTD untuk menjalankan kerja-kerja tersebut dan syarikat Southbank Office Fitout and Furniture bukan salah satu daripada syarikat yang tersenarai untuk pertimbangan mesyuarat. Perbuatan Y.Bhg. Dato’ tersebut melanggar Arahan Perbendaharaan 170.3 (a) yang menyatakan – 8 “170.3 Perlantikan Dan Keputusan Jawatankuasa Sebut Harga

(a) Keputusan mengenai sebut harga hendaklah dibuat oleh satu Jawatankuasa yang dilantik secara bertulis oleh Pegawai Pegawai dengan keahlian sekurang-kurangnya tiga (3) orang…” Perbuatan Y.Bhg. Dato’ juga boleh ditafsirkan sebagai kurang cekap atau kurang berusaha serta tidak bertanggungjawab iaitu melanggar peraturan 4.2 (e) dengan (g) P.U (A) 395/1993 seperti berikut – “4. (2) Seseorang pegawai tidak boleh -

(e) kurang cekap dan kurang berusaha; dan

(g) tidak bertanggungjawab. Jika Y.Bhg. Dato’ didapati bersalah atas pertuduhan di atas, Y.Bhg. Dato’ boleh dikenakan mana-mana satu atau apa-apa gabungan dua atau lebih hukuman yang dinyatakan dalam peraturan 38 P.U. (A) 395/1993 selain daripada hukuman buang kerja atau turun pangkat.” [7] In essence the first charge relates to the appointment of a nephew of the Applicant as a driver at the Consulate General Malaysia in Melbourne Australia, for a period of one (1) year commencing 14 November 2011 until 13 November 2012, by a contract dated 1 November 2011, wherein such appointment of a relative was in contravention of Article 1.1 of 9 Pekeliling Perkhidmatan Pentadbiran Bilangan 4 of 1981, which action can be interpreted as causing a conflict between personal interest and public duties, which is in contravention of regulation 4.2 (b) P.U.(A) 395/1993. [8] The second charge ( the charge relevant to the instant appeal) relates to the Applicant’s action in the appointment of Southbank Office Fitout and Furniture (‘Southbank’) to carry Fit-Out works and renovation works at the Consulate General of Malaysia’s office in Melbourne, Australia by a letter dated 28.10.2011, even though Southbank was not shortlisted for the Committee’s consideration and the Committee, ‘Jawatankuasa Perumahan Perwakilan’ (JKPP) MALAWAKIL, Melbourne , which was chaired by the Applicant had, on 10.10.2011 appointed IRM Interiors PTY LTD. to carry out the said works. The Applicant’s action was in contravention of paragraph 170.3 (a) of Treasury Instruction which stipulate that a decision on such tenders must be made by a Committee appointed in writing with a composition of at least three persons. [9] In response to the two charges against him, the Applicant, by a letter dated 19.10.2015 filed a representation to the 1st Respondent in defence of his conduct. In respect of the 2nd charge, the Applicant’s representation may be summarised as follows: 10

(a) Southbank Office Fitout and Furniture and IRM Interiors PTY LTD are the same company;

(b) The name of both companies abovementioned appear in the same letterhead as can be seen from the invoice sent to the Applicant’s office; and

(c) the costs, specifications and quotations between both companies abovementioned were the same. [10] By a letter dated 10.5.2016, the 1st Respondent informed the Applicant that the 1st Respondent in its meeting on 12.4.2016, had found the Applicant guilty on both charges and imposed on the Applicant, the punishment of reduction of three salary scales for a period of 36 months in respect of both charges. [11] The Applicant thereafter, on 2.06.2016, filed an appeal against the said decision to the 2nd Respondent. [12] By a letter dated 20.12.2016, the 2nd Respondent informed the Applicant that having considered the Applicant’s appeal at a meeting on 5.12.2016, the 2nd Respondent had decided as follows: 11

(i) in respect of the first charge, to set aside the finding of guilt and punishment by the 1st Respondent; and

(i) The Respondents’ decision-making process were tainted with illegalities, irrationalities and/or procedural improprieties as the 2nd Respondent had failed to state its reasons or to give proper directions in remitting the 2nd charge back to the 1st Respondent for reconsideration.

(v) The failure of the 1st and 2nd Respondents to state the effective date of punishment on the 2nd charge is fatal.

(i) The issue on the composition of the 1st Respondent when the 2nd charge was remitted to the 1st Respondent for re-consideration was not pleaded and therefore, should not be considered by the Court.

(v) There is no requirement in law for the 1st Respondent to inform the Applicant of his right of appeal to the 2nd Respondent. 15

The Respondents had raised a preliminary issue that the decision by the 1st Respondent on 6.4.2017 is not a final decision which is amenable to judicial review. The learned Judge agreed with the Respondents and stated as follows (in paras. 20- 22 of his ‘Judgment’): “Reverting to the present case, it is not disputed that the respondents’ decision on 10.5.2016 was appeal against to the 2nd respondent. Thereafter, the 2nd respondent has decided on 5.12.2016 to set aside the finding of guilt for the 1st charge and remitted back the 2nd charge to the 1st respondent for re-consideration. Having considered the 2nd charge again, on 6.4.2017 the 1st respondent found that the applicant is guilty of the said 2nd charge. This decision was again appealed to the 2nd respondent which eventually was affirmed on 19.3.2018. 16 Based on the above-mentioned facts, clearly the final decision that adversely affects the Applicant is the 2nd Respondent’s decision on 19.3.2018 and not the 1st Respondent’s decision on 6.4.2017 as it was still under appeal at the material time. In the circumstances, the 1st Respondent’s decision is not subject to a judicial review”.

There is no statutory requirement for the 2nd Respondent to give its reasons or to give any directions pertaining to its decision to remit the 2nd charge back to the 1st Respondent for re-consideration.

The reason to remit back the 2nd charge to be re-considered by the 1st Respondent had been given which is due to the existence of a discrepancy with regard to the punishment for the 1st charge imposed by the 1st Respondent. In the Record of Proceedings, it states that the punishment imposed on the 1st charge is a ‘warning’. However, in the 1st Respondent’s letter to the Applicant dated 10.5.2016, it states the punishment is the reduction of three scales of salary for 36 months.

The failure of the 2nd Respondent to state the effective date of punishment on the 2nd charge is not fatal as Regulation 41(2) of the 17 Public Officers (Conduct and Discipline) Regulations 1993 provides that if no date is specified, the punishment shall be implemented “on the date the punishment is imposed”. As such the punishment of the three scales of reduction of the Applicant’s salary for 36 months imposed by the 1st Respondent was on 6.4. 2017.

The implementation and execution of the 1st Respondent’s decision in respect of the 2nd charge, which was affirmed by the 2nd Respondent is the function of the Public Service Department and the related Ministry.

There is no evidence to support the Applicant’s contention that the punishment of reduction of three salary scales for 36 months would result in the imposition of more than 36 months as imposed by the 1st Respondent on the 6.4.2017 and affirmed by the 2nd Respondent on 19.3. 2018. The learned Judge added as follows: “…Clearly the authority has to make the necessary adjustment to comply with the said decision and any irregularity, if at all exist, does not affects the validity of the said decision.” 18

The 2nd Respondent had considered the detailed facts in relation to the 2nd charge and the representation by the Applicant and arrived at the finding that the Applicant’s conduct in appointing Southbank Office Fitout and Furniture without going through the Jawatankuasa Sebut Harga had clearly infringed the Treasury Instruction 170. 3 (a). In the instant case the Committee, Jawatankuasa Perumahan Perwakilan, MALAWAKIL Melbourne had earlier on 10.10.2011 appointed IRM Interiors PTY LTD to carry out the fit out and renovation works at the General Consulate Office, Melbourne.

The issue of the composition of the 1st Respondent in order to avoid biasness when the 2nd charge was remitted back to the 1st Respondent to be re-considered was neither pleaded nor raised in the Applicant’s affidavit in support. As such the same issue of composition of the 1st Respondent to hear the 2nd charge is untenable. The learned Judge stated (in para. 57 of the ‘Judgment’) as follows: “In any event, as alluded to earlier, the reason for the 2nd charge been remitted back to the 1st respondent for consideration only relates to the discrepancy of the punishment with regard to the 1st charge which has been dismissed by the 2nd respondent. Hence there is no bias in this 19 regard on the part of the 1st respondent and also it does not prejudice the applicant.”

Regulation 37A clearly provides that an Investigation Committee can be formed if the Disciplinary Committee thinks it is necessary, which is not in the present case. Hence the issue of failure to form an Investigation Committee is also untenable. [19] Based on the above reasons, the learned Judge concluded that the 2nd Respondent’s decision to remit the 2nd charge to the 1st Respondent and subsequently affirming the 1st Respondent’s decision in respect of the 2nd charge is not tainted with any illegality, irrationality or procedural impropriety. GROUNDS OF APPEAL [20] The primary grounds raised by the Applicant in the Memorandum of Appeal may be summarised as follows:

The learned Judge had erred in his decision that the 1st Respondent’s decision on 6.4.2017 is not subject to judicial review, as the application for judicial review commenced from the decision of the 1st 20 Respondent to the subsequent decision of the 2nd Respondent, including the punishment imposed.

The learned Judge had erred in his decision there is no duty on the 2nd Respondent to give reasons or specific directions to the 1st Respondent when the 2nd Respondent decided to remit the 2nd charge to the 1st Respondent on 5.12.2016 .for re-consideration. There was uncertainty as to whether the punishment imposed by the 1st Respondent on 6.4.2017 in the first proceedings were set aside or were still in force.

The learned Judge had erred in the failure to establish an Investigation Committee and this constitutes a breach of the Audi Alteram Partem rule.

The learned Judge had erred in fact and law in failing to consider the meaning of ‘illegality’, ‘irrationality’, and ‘procedural impropriety’ when there existed a clear discrepancy with regard to the punishment for the 1st charge imposed by the 1st Respondent as stated in the letter informing the Applicant of the 1st Respondent’s decision, and as stated in the 2nd Respondent’s Affidavit where the punishment was reduction of three scales of salary for 36 months for the 1st and 2nd 21 charge. However, in the Affidavit of the 1st Respondent, it states that the punishment imposed on the 1st charge is a ‘warning’, while the punishment on the 2nd charge is the reduction of three scales of salary for 36 months.

The learned Judge had erred in his decision that the issue of the composition of the 1st Respondent to re-consider the 2nd charge was not subject to judicial review as the same had not been pleaded by the Applicant.

The learned Judge had erred in his failure to make a decision on what was the effective date of punishment to be implemented on the Applicant. In essence, the learned Judge failed to consider there were two dates on which the same punishment of reduction of three salary scales was imposed. The punishment imposed on 12.4.2016 and the same punishment imposed by the 1st Respondent on re-consideration dated 6.4.2017. This renders the punishment defective.

The learned Judge had erred in his finding that the date of implementation of the punishment against the Applicant in respect of the 2nd charge was on the 6.4 2017 whereas the punishment was 22 enforced against the Applicant much earlier on the 12.4.2016. This resulted in the duration of the punishment to be extended beyond 36 months to 48 months. This is in contravention of Article 5 (1) and Article 7(1) of the Federal Constitution.

The learned Judge had erred in his finding that the Applicant was in breach of Treasury Instruction 170.3 (a) when the Applicant appointed Southbank Office Fitout and Furniture instead of IRM Interiors PTY LTD for fit out and renovation works at the Consulate General Office in Melbourne, Australia. The learned Judge had failed to consider that Southbank Office Fitout and Furniture and IRM Interiors PTY LTD is owned by the same individual at all material times and both companies had maintained the same quotation in respect of the proposed fit out and renovation works and that the two companies abovementioned differ in name only. OUR DECISION [21] After careful consideration of learned counsels’ written and oral submissions as well as the appeal records, we were of the unanimous view that there were merits in this appeal that warrant appellate 23 intervention. We therefore allowed this appeal with costs and set aside the order of the High Court. We give our reasons below. [22] The grounds for judicial review have been clearly and succinctly enunciated by Lord Diplock in the landmark decision of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 and cited with approval by the Federal Court in the recent case of Peguam Negara Malaysia v Chin Chee Kow & Another Appeal [2019] 4 CLJ 561 at p.28, stated as follows: “Judicial review has I think developed to a stage today when one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality”, the second “irrationality” and the third “procedural impropriety”. By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable. By “irrationality” I mean what can now succinctly be referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses 24 Ltd. V Wednesbury Corporation [1948[ 1 KB 223]. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no reasonable person who had applied his mind to the question to be decided could have arrived at it. I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.” [23] Recent cases have also endorsed the abovementioned position that the current state of law on judicial review in Malaysia permits a review of both process and merit. (See Dato’ Seri Dr Ahmad Zahid Hamidi, Menteri Dalam Negeri Kementerian Dalam Negeri & Ors v Soo Lina & Ors [2018] 6 CLJ 285; Ranjit Kaur S Gopal Singh v Hotel Excelsior

(M) Sdn Bhd [2010] 8 CLJ 629). [24] While the Appellant has listed numerous grounds of appeal in his “Memorandum Rayuan”, during the oral submissions before us, the focus of the arguments raised by learned counsels pertain to alleged procedural 25 improprieties arising from the punishment imposed by the 1st Respondent and affirmed by the 2nd Respondent on the 2nd charge i.e. reduction of three salary scales for 36 months .It is to be noted that the arguments centred not on the punishment per se but primarily on two inter related issues: First, the legal implications of the uncertainty in respect of the status of the punishment when the 2nd Respondent remitted the 2nd charge to the 1st Respondent for re-consideration and second, the uncertainty in respect of the effective date of punishment on the 2nd charge and consequences arising from the implementation thereof. Taking the cue from learned counsels, we therefore propose to address the above-mentioned issues only in our Judgment. In our considered opinion, the determination of the issues abovementioned are sufficient to dispose of this appeal. First Issue Failure to set aside the punishment on the 2nd charge [25] The first issue raised by the Applicant was that there was a procedural impropriety in the failure of the 2nd Respondent to provide clarity on the status of the punishment imposed by the 1st Respondent in the earlier proceedings when the 2nd respondent remitted the 2nd charge back to the 26 1st Respondent for re-consideration. In consequence thereof, the punishment imposed by the 1st Respondent on 12.4.2016 in the first proceedings was still subsisting when the 2nd charge was reconsidered by the 1st Respondent, and the decision to affirm the same punishment in the subsequent proceedings was made by the 1st Respondent on 6.4.2017. This was alleged to be highly prejudicial to the Applicant. [26] From the Affidavit of Y.Bhg. Tan Sri Arpah binti Abdul Razak affirmed on behalf of the 2nd Respondent, the reason the 2nd Respondent had remitted the 2nd charge back to the 1st Respondent for re-consideration was due to a discrepancy in punishment on the two charges between what was stated in the 1st Respondent’s record of proceedings and what was conveyed by the 1st Respondent to the Applicant by letter dated 20.12.2016. The abovementioned discrepancy was also admitted by learned Federal Counsel in the hearing before us. [27] In the Affidavit of the 1st Respondent, it states that the punishment imposed on the 1st charge is a ‘warning’, while the punishment on the 2nd charge is the reduction of three scales of salary for 36 months. However, the 1st Respondent had stated in the letter dated 20.12.2016 to the Applicant, that the decision of the 1st Respondent in respect of the 1st and 2nd charges was punishment of reduction of three scales of salary for 36 27 months. The Applicant was also informed that the 2nd Respondent will remit the 2nd charge back to the 1st Respondent for re-consideration. The relevant portion of the abovementioned letter is reproduced below: “(i) mengakas keputusan dan hukuman Lembaga Tatatertib Perkhidmatan Awam Kumpulan Pengurusan (No.1) dan membebaskan YBhg. Dato Dr. bagi pertuduhan pertama; dan

(1) The appropriate Disciplinary Authority may impose a punishment of reduction of salary on an officer in accordance with the following provisions:

(a) …

(b) …

(c) the duration of the punishment shall not be less than twelve months but shall not be more than thirty-six months on any one occasion.” [Emphasis added] [35] The undisputed facts in the instant case were that there were two proceedings by the 1st Respondent on the 2nd charge, albeit both proceedings had led to the same punishment. The first proceedings before the 1st Respondent led to the decision to impose the punishment on the 12.4.2016. The 2nd proceedings (on re-consideration) by the 1st Respondent led to a decision of the same punishment on 6.4.2017. The 1st Respondent’s decision on 6.4.2017 was affirmed by the 2nd Respondent on the 19.3.2018. It stands to reason that there cannot be two different dates of the commencement of the same punishment on the 32 same charge i.e. 12.4.2016 and 6.4.2017 against the same person, the Applicant in the instant case. This underscores the earlier issue raised that the punishment meted out to the Applicant in the earlier proceedings ought to have been set aside as a consequence of remitting the 2nd charge back to the 1st Respondent for re-consideration. [36] In addition, the consequences are also highly prejudicial for the Applicant as the punishment pertains to three scales of reduction in salary for 36 months. The contention of the Applicant is that since the punishment of salary deduction was implemented from the decision on 12.4.2016 and had not been set aside when the 2nd charge was remitted for re-consideration, and the same sentence was imposed on 6.4 2017, the effect is that the duration of the punishment would exceed the maximum 36 months stipulated by the Regulation 41(1). This is an irrefutable inference arising from the implementation of two punishments at two separate times. A punishment is only lawful if it is implemented in strict compliance with the express provisions of the law. Regulation 41(1) above expressly stipulates the minimum and maximum punishment of salary reduction that can be imposed. Any sentence which cannot be lawfully maintained is therefore invalid and renders the proceedings null and void. 33 [37] We note that the learned Judge did not make a decisive finding on the legal implications arising from the uncertainty in respect of the effective date of punishment and there was a lack of judicial appreciation thereof. The learned Judge had in fact conceded the possibility that the Applicant’s salary may have been deducted wrongfully, but agreed with the Respondent that, if at all, it was an irregularity and not fatal to the decision. In this respect, we strongly disagree with the view expressed by the learned Judge that it is an administrative matter in which financial “necessary adjustment” may be made by the relevant authority. His Lordship had stated [at para 41] as follows: “…Clearly the authority has to make the necessary adjustment to comply with the said decision and any irregularity, if at all exist does not affects the validity of the said decision.” [38] The irrefutable inference to be drawn from the excessive salary deductions from the Applicant, is either that the punishment had been implemented before its effective date or the punishment as implemented had exceeded the maximum duration stipulated by regulation 41(1). Either way, the implementation of the punishment is both erroneous and unlawful. These wrongful salary deductions carry serious legal implications and can by no means be treated as an “irregularity” that can 34 be easily rectified by “adjustment” of proper salaries due to the Applicant by the relevant authorities. [39] Learned Federal Counsel also contended that there is no necessity to state an effective date of punishment because the Public Officers (Conduct and Discipline) Regulations 1993 provides that in the event the Disciplinary Authority did not stipulate a date for the implementation of the punishment, the date of the implementation would be on the date the punishment is imposed. Reference was made to Regulation 41(2) which states as follows: “41 (2) The punishment of reduction of salary imposed on an officer shall be implemented on the date as specified by the appropriate Disciplinary Authority or if no date is specified, on the date the punishment is imposed.” [40] A literal construction of Regulation 41(2) abovementioned where an effective date of punishment, if not stated may be construed as the date of decision would, in ordinary circumstances not give rise to any uncertainty as there would ordinarily be only one decision date. The facts of the instant case however, differ in that there were two dates of decision which imposed the same punishment. The 1st Respondent’s decision on 12.4.2016 and on re-consideration, the 1st Respondent’s decision on 35

6.4.2017. The Respondents’ contention is that the date of decision is 6.4.2017 and not 12.4.2016. However, the punishment of salary deduction had been implemented against the Applicant consequential to the 1st Respondent’s decision on 12.4.2016. In these circumstances of two decisions on two different dates, a literal construction of Regulation 41(2) abovementioned is of little, if any assistance to determine the effective date of punishment. [41] The same issue that the date of punishment can be construed from the date of decision as stated in the Regulation was raised before the Court of Appeal in the case of Owi Cheng Ian v Suruhanjaya Pasukan Polis DiRaja Malaysia & Ors [2014] 8 CLJ 559. The necessity to state an effective date of punishment was endorsed by the Court of Appeal in the case of Owi Cheng Ian (supra). The pertinent facts of the case were that the appellant, a chief inspector, had been dismissed from the police force. One of the issues raised by the appellant was the failure of the respondent to adhere to procedural requirements, inter alia, by their failure to state the date of the commencement of the decision in the ‘Pemberitahuan Hukuman Tatatertib’, the pertinent portion of which is reproduced below: 36 “Dengan hormatnya saya memaklumkan bahawa Suruhanjaya Pasukan Polis di dalam mesyuaratnya yang ke-74 pada 11.3.2009 selepas menimbang surat representasi tuan bertarikh 20.1.2008 dengan teliti dan saksama telah membuat keputusan seperti berikut:

(a) Tuan didapati bersalah dan dikenakan hukuman Buang Kerja

This was affirmed by the 2nd Respondent on 19.3.2018. Thus, there were two commencement dates of punishment imposed in respect of the same punishment and the same charge. No evidence was tendered by the Respondents that the deductions of salary that was wrongfully made against the Applicant has been refunded. In effect and in practical terms the Applicant was subjected to two punishments for the same charge. [49] It would be a gross injustice to treat these serious procedural improprieties as mere irregularities that can be rectified by suitable financial adjustment, or to attempt to absolve the Respondents of its public duty to act fairly by the argument that the implementation of the punishment is the function of the Public Service Department and the related Ministry, and removed from the exercise of the powers of the 1st and 2nd Respondents, and thus was not within the purview of the Respondents. [50] We would like to emphasise here that in exercising public functions against the individual, public bodies have a duty to act fairly in substance as well as procedure and courts have to be vigilant to ensure that might does not become right. More than forty years ago, the late Raja Azlan 42 Shah CJ (Malaya) (as HRH then was) had made the following observations in the celebrated case of Pengarah Tanah dan Galian Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135, which observations still ring true today. His Lordship stated: "Every legal power must have legal limits, otherwise there is dictatorship. In particular, it is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably. In other words, every discretion cannot be free from legal restraint, where it is wrongly exercised, it becomes the duty of the courts to intervene. The courts are the only defence of the liberty of the subject against departmental aggression. In these days when government departments and public authorities have such great powers and influence, this is a most important safeguard for the ordinary citizen, so that the courts can see that these great powers and influence are exercised in accordance with law. I would once again emphasise what has often been said before, that public bodies must be compelled to observe the law and it is essential that bureaucracy should be kept in its place (per Danckwerts LJ in Bradbury v London Borough of Enfield [1967] 3 All ER 434,443).” [51] For all the reasons stated above, we were unanimous in our view that there were serious procedural improprieties by the 2nd Respondent in the 43 failure to set aside the punishment on the 2nd charge on remitting the 2nd charge for reconsideration by the 1st Respondent and the failure of the Respondents to specify an effective date of said punishment which had led to wrongful deductions to the Applicant’s salary. We are of the considered view that these are serious procedural improprieties that have tainted the fairness and justice of the proceedings. [52] We therefore allowed the appeal and the prayers of the Applicant as stated in para 2 (a), (b), (c) and (d) of the Applicant’s judicial review application under Order 53 of the Rules of Court 2012. In particular we allowed the following reliefs:

(a) an order of certiorari to quash the decision of the Disciplinary Board for the Managerial Group (No. 1) (‘Disciplinary Board’) dated 06.04.2017, which found the Applicant guilty of a disciplinary misconduct and imposed the punishment of a salary reduction of three salary scales for a period of 36 months; and/or

(b) an order of certiorari to quash the decision of the Disciplinary Appeal Board, Public Service Commission (‘Disciplinary Appeal Board’) dated 19.03.2018 which affirmed the decision of the Disciplinary Board on 06.04.2017. 44 [53] We also awarded costs of RM20,000.00 to the Applicant/Appellant subject to allocatur. Dated: 11 August 2020. T.T (DATUK DR. BADARIAH SAHAMID) JUDGE, COURT OF APPEAL PUTRAJAYA Parties Appearing: For the Appellant: Encik Ismail bin Badiuzzaman En. Shahidan bin Baharom Puan Farah binti Helmy Messrs. Ismail Badiuzzaman & Associates Advocates and Solicitors No. 36-1B, Tingkat 1, Blok 12 Jalan Pahat J/15J, Dataran Otomobil Shah Alam Seksyen 15 40200 Shah Alam Selangor Darul Ehsan For the Respondent: Puan Kogilambigai a/p Muthusamy Encik Liew Horng Bin Attorney General’s Chambers Civil Division No. 45, Persiaran Perdana Presint 4 62100 Putrajaya