10.3 - During and After the Proceedings E. Excel Malaysia has the unfettered right and discretion to: a) require any Distributor to assist E. Excel Malaysia with the Proceedings; b) require any Distributor to produce any documents E. Excel Malaysia deems necessary; c) suspend the Distributor Complained Against pending investigation of the Proceedings; d) suspend the Distributor Complained Against throughout the entire Proceedings process; e) deny the Distributor Complained Against access to office premises and customer services, such as report printing, pending the Proceedings; and f) impose sanctions, including termination, against the Distributor Complained Against; The Distributor Complained Against must not institute or maintain in any court any action or proceeding against E. Excel Malaysia and/or the Disciplinary Committee or any of its members for acts or omissions done in good faith in the discharge of its functions, powers, and duties under the Agreement. Any dispute, difference or disagreement with a decision of the Disciplinary Committee shall be construed as a dispute between the Distributor and E. Excel Malaysia and shall be referred to arbitration in accordance with the terms of this Agreement. [32] The above provision states that once the Appellant receives a complaint against its distributor, the former must appoint a Disciplinary Committee to conduct the disciplinary proceedings against the latter. In short, to start off a disciplinary proceeding, there must be established a dedicated group in the Appellant known as the Disciplinary Committee whose tasks are to investigate into and decide on any complaint against a distributor. It is crystal clear that there is none other party except the Disciplinary Committee entrusted with such responsibility. [33] Nonetheless, in the present appeal, there is no cogent evidence to establish that such Disciplinary Committee has been appointed by the Appellant to investigate into the complaint against the Respondent. The Appellant argued that it used the terms “management” and “Ms Lee Li Chong” in the suspension letter to justify the existence of the Disciplinary Committee while the term “interview” was used as reference to “investigation”. With respect, I am not prepared to accept this argument. In my view, this argument is bereft of merit since Chapter 10 of the EEPP mentions it clear that the Disciplinary Proceedings must be conducted by the Disciplinary Committee. There is nowhere in that Chapter mentioning that the Disciplinary Proceedings can be conducted by the management. [34] Likewise the terms “investigation” and “interview” which the Appellant argued were used interchangeably. This argument ipso facto indicates that the Appellant simply ignored Chapter 10 of the EEPP and used its own terms which give it an advantage of its own wrong. Clearly, this is nothing more than a tactical manoeuvre and an abuse of process. [35] Another argument mounted by the Appellant is about its unfettered right to determine its own rules and procedures governing the investigation proceedings. Nevertheless, upon perusal of the cause papers, there is no evidence produced by the Appellant that such rules and procedures about the Disciplinary Proceedings has been formally conveyed or informed to the Respondent as a guide for her to defend her rights and entitlements. In any event, the term “unfettered right to determine its own rules and procedures governing the investigation proceedings”, in my view, does not in any manner give the Appellant a carte blanche right to ignore the rules of fair play and blatantly take advantage against the Respondent by setting only procedures at its whims and fancies or suit to its favour. In short, while I agree with the Appellant’s argument that such term allows the Appellant to determine its own rules and procedures, but it must be limited to the extent that the method of proceedings it adopts is not in breach of Chapter 10 of the EEPP and does not result in a denial of natural justice to the Respondent. [36] The Appellant also argued that there is no denial of natural justice because the Respondent failed to show that she had lost “something substance” resulting from the breach of the prescribed rules and procedure as decided in Lembaga Jurutera Malaysia v. Leong Pui Kun [2008] 6 CLJ 93;[2009] 2 MLJ 36. In this context, the Appellant averred that any non-compliance of Chapter 10 of the EEPP by the Appellant does not automatically give rise to a denial of justice as the Respondent still has to show that there was something of substance that had been lost as a result of the alleged non-compliance. [37] It has to be noted that, in Lembaga Jurutera Malaysia (supra), the respondent's registration as a professional engineer was cancelled and the High Court and the Court of Appeal allowed the respondent’s appeal. On appeal to the Federal Court, one of the issues highlighted was whether the disciplinary proceedings were tainted or rendered bad in view of the presence and/or participation of the board's secretary and/or its legal adviser at one or more meetings where the respondent's case was discussed. In allowing the appellant’s appeal, the Federal Court held that the respondent had not lost something substance because he was in fact given the opportunity to present further written submissions on the preliminary issue relating to complaint after the appellant had heard advice from its legal adviser on the matter, and the appellant considered the further submission of the respondent before making a decision. Thus, the proceedings were not tainted or rendered bad in law by virtue of the presence and or participation of the appellant's secretary and legal adviser in the proceedings. [38] Unlike the facts in Lembaga Jurutera Malaysia (supra), in the present appeal, as I stated earlier, there is no proper forum established by the Appellant to conduct the Disciplinary Proceedings as required by Chapter 10 of the EEPP. Instead, the Respondent was tried by an unknown entity pretending to be the Disciplinary Committee. As a result, the Respondent was not given all the opportunities to present her defence at the prescribed forum. This is none other than a sheer denial of justice and of the Respondent’s right to be heard. As such the Respondent had clearly lost her substantive right. [39] At this juncture, I find instructive the case of Fahmi bin Zainol & Ors v. Jawatankuasa Tatatertib Pelajar, Universiti Malaya & Ors [2017] 10 CLJ 304; [2018] 7 MLJ 814 where Yazid Mustafa J dealt with an employer which failed to adhere to its own rules. The Lordship held that – [81] When the first respondent failed to adhere to their own Rules, the proceedings caused injustice and/or prejudice to the applicants thus renders breach of rules of natural justice inter alia denied the applicants the right to be heard. [82] In Suraya Amdah v. Ketua Setiausaha Kementerian Kesihatan Malaysia & Anor [2015] 7 CLJ 403; [2016] 7 MLJ 781 at p. 411 (CLJ); p. (MLJ), it was held: The case established the proposition that whenever in the exercise of a power a decision is taken by the administration which affects the legal rights of an individual to his detriment, the rules of natural justice must be observed by the decision maker. The fact that the statute is silent as regards procedures to be followed is immaterial. The case also held that the requirement to adhere to the dictates of natural justice arises by implication from the nature of the power conferred. The immediate result was that now bodies exercising quasi-judicial functions were bound to adhere to the rules of natural justice even where they were primarily exercising administrative functions. [83] The above case has decided that even if a statute is silent as regards to procedures to be followed is immaterial, what more in this case where there is a codified written rule specifically governing the procedural requirement yet it was not followed. If this is not a breach of natural justice, then what else could be? [40] The similar approach was taken by Ajaib Singh J (as his Lordship then was) in Florence Bailes v. Dr Ng Jit Leong [1984] CLJU 133; [1984] 1 LNS 133; [1985] 1 MLJ 374, where the Lordship stated as follows: The Penang Club is an unincorporated members' club and as such it is perfectly entitled to make rules and regulations for the proper conduct of its members and the club's management as a social club. It is not the concern of the court to adjudicate on domestic matters of a social club. These matters are left entirely to the members so long as the managing committee of the club conforms strictly to the rules. Thus a club member may be expelled or suspended for misconduct if the rules of the club so provide and the court will not intervene if the rules of the club have been strictly followed. On the other hand the court will intervene if the club rules have not been strictly followed in expelling or suspending a member. In such a case the court is not only not incompetent to intervene but is the only forum to whom an aggrieved member may look to for redress which the court may grant in the exercise of its supervisory jurisdiction over members' clubs to see that they conform to their constitution. For otherwise there may be a real risk that members may be exposed to the whims and fancies and likes and dislikes of committee members leaving club members with legitimate grievances without any remedy. [41] In the Court of Appeal case of Darshan Singh v. Farid Kamal Hussain (suing for and on behalf of Board of Members and Kelab Sukan Pulau Pinang [2004] 4 CLJ 410; [2005] 3 MLJ 502, it was held that: