MD Shahrizal Bin Ithnin v Pengerusi Jawatankuasa Rayuan Tatatertib Dengan Tujuan Buang Kerja atau Turun Pangkat bagi Ketua Eksekutif, Timbalan Ketua Eksekutif, Kumpulan Pengurusan Tertinggi dan Kumpulan Pengurusan & Profesional Perbadanan Tabung Pembangunan Kemahiran (Ptpk) (WA-25-601-12/2022)

This was an application by the Applicant for certiorari to quash the decision by the Jawatankuasa Tatatertib Dengan Tujuan Buang Kerja Atau Turun Pangkat Bagi Ketua Eksekutif, Timbalan Ketua Eksekutif, Kumpulan Pengurusan Tertinggi Dan Kumpulan Pengurusan & Profesional (‘DC’), Perbadanan Tabung Pembangunan Kemahiran (‘PTPK’) vide the letter dated 6.9.2022 to demote the Applicant (‘said Decision’).

The Court, having considered the cause papers and oral and written submissions of the parties, had dismissed the application. This judgment contains the full grounds for the decision. S/N nLh1tzyYkabfvXIUkqC4Q

The Applicant commenced service with the Respondent as a Pegawai Tadbir Grade N41 with effect from 1.7.2008.

The Applicant then rose from the ranks whereupon from 1.12.2012 until 16.4.2017, he served as a Manager, Grade N48 in the Policy Unit of PTPK.

Subsequently, from 17.4.2017 to 13.9.2017, the Applicant was assigned to the Financing Division of PTPK. In general, the Applicant's duties in the said Division involved receiving and processing the application documents from Training Providers, including those under the PLKB40 programme. If the application documents were complete, the Applicant would then prepare the payment instruction documents for submission to the Finance Division for payment processing.

The Applicant was paid a basic salary of RM7,345.00 per month together with a fixed Housing Allowance of RM700.00, Entertainment Allowance of RM550.00 and Cost of Living Allowance of RM300.00.

The Applicant was summoned to give a statement to the Malaysian Anti-Corruption Commission (‘MACC’) on 13.9.2017. The Applicant admitted to receiving monies, but he later alleged that the confession was made after being repeatedly pressured by the MACC officer or Investigating Officer. S/N nLh1tzyYkabfvXIUkqC4Q

On 29.4.2019, the Session Court ordered the forfeiture of confiscated items where the Applicant was named as a respondent. The Order was unchallenged.

On 29.3.2021, the DC met for the Determination of Prima Facie, No. 1 of 2021.

On 20.4.2021, the DC issued a letter dated 20.4.2021 to the Applicant (‘20.4.2021 Letter’) containing the following charge: “Bahawa tuan, Encik Md Shahrizal Bin Ithnin, … Pengurus Gred N48 semasa bertugas di Bahagian Pembiayaan pada tahun 2017 dalam keterangan kepada Suruhanjaya Pencegahan Rasuah Malaysia (SPRM) mengaku telah menerima wang upah secara tunai dan juga pindahan wang melalui akaun bank daripada Dr. Nik Mohd Azli bin Nik Ariffin yang berjumlah dalam anggaran antara RM800,000.00 hingga RM1 juta sebagai balasan membantu syarikat milik Dr. Nik Mohd Azli bin Nik Ariffin serta syarikat-syarikat consortium dalam urusan membuat kertas kerja untuk Program B40 dan mempercepatkan proses bayaran tuntutan oleh syarikat milik Dr. Nik Mohd Azli bin Nik Ariffin. Oleh yang demikian, tindakan dan tatakelakuan tuan merupakan ketidakpatuhan kepada Peraturan Tatatertib Badan-Badan Berkanun, Jadual Kedua, Akta S/N nLh1tzyYkabfvXIUkqC4Q Badan-Badan Berkanun (Tatatertib Dan Surcaj) 2000 [Akta 605] yang berbunyi seperti berikut:-

Peraturan 3(2)(c)(ii) – Seseorang pegawai tidak boleh berkelakuan dengan apa-apa cara yang mungkin menyebabkan syak yang munasabah bahawa dia telah menggunakan kedudukannya sebagai seorang pegawai badan berkanun bagi faedahnya sendiri.

(ii) Peraturan 3(2)(f) – Seseorang pegawai tidak boleh tidak jujur dan tidak amanah.

(iii) Peraturan 3(2)(g) – Seseorang pegawai tidak boleh tidak bertanggungjawab. Jika tuan didapati bersalah atas pertuduhan di atas, tuan boleh dihukum mengikut Peraturan 40, Peraturan Tatatertib Badan-Badan Berkanun, Jadual Kedua, Akta Badan-Badan Berkanun (Tatatertib Dan Surcaj) 2000 [Akta 605].”.

The Applicant was directed to submit a written representation within 21 days from the date the Applicant received the 20.4.2021 Letter.

The DC received the Applicant’s letter of representation dated 6.5.2021 (‘Representation Letter’) on 7.5.2021. S/N nLh1tzyYkabfvXIUkqC4Q

The DC’s Meeting No. 1 of 2022 was held on 21.2.2022.

The Applicant alleged he missed the opportunity to attend the Grade N52 interview around February 2022. According to the Respondent, the Applicant was not entitled for the interview as he failed the MACC Integrity Screening and he was already demoted from Grade N48 to N44 at the material time.

On 15.3.2022, the Applicant received the letter dated 10.3.2022 from the DC stating that the DC had convened on 21.2.2022 and decided that the Applicant was guilty of the charge and was imposed the punishment of demotion effective from 21.2.2022

The Applicant was given the opportunity to appeal to the Jawatankuasa Rayuan Tatatertib PTPK (‘AC’), through the Head of Department (‘HoD’), within 14 days from the date of receipt of the said Decision.

Before the Applicant could submit his appeal against the said Decision, the Respondent issued Memo Arahan Pertukaran Pegawai dated 14.3.2022 directing the Applicant to be transferred to Pejabat UTC Kedah to serve as a Manager (‘Transfer Directive’). The Transfer Directive took effect on 21.3.2022.

The Applicant subsequently submitted a written response dated 17.3.2022 expressing his disagreement with the Transfer S/N nLh1tzyYkabfvXIUkqC4Q Directive. However, the Respondent, vide the letter dated 18.3.2022, informed that the decision to transfer the Applicant was final.

The Applicant submitted his appeal against the said Decision on 22.3.2022.

The Applicant applied to the Respondent for a postponement of the reporting date for the Transfer Directive until 4.4.2022 and this application was approved on 21.3.2022.

The AC Meeting No. 1 of 2022 was held on 29.8.2022.

On 12.9.2022, the Applicant received the letter dated 6.9.2022 conveying the decision of the AC that the AC had convened on 29.8.2022 and decided to dismiss the Applicant’s appeal. The punishment imposed by the DC was affirmed.

The Applicant filed the instant application on 11.12.2022.

The oft-quoted passage in R Rama Chandran v. Industrial Court Of Malaysia & Anor. [1997] 1 CLJ 147 on the applicable legal principles reads as follows: “It is often said that judicial review is concerned not with the decision but the decision-making process. (See, e.g. S/N nLh1tzyYkabfvXIUkqC4Q Chief Constable of North Wales v. Evans [1982] 1 WLR 1155). This proposition, at full face value, may well convey the impression that the jurisdiction of the Courts in judicial review proceedings is confined to cases where the aggrieved party has not received fair treatment by the authority to which he has been subjected. Put differently, in the words of Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374, where the impugned decision is flawed on the ground of procedural impropriety. But, Lord Diplock’s other grounds for impugning a decision susceptible to judicial review makes it abundantly clear that such a decision is also open to challenge on grounds of ‘illegality’ and ‘irrationality’ and, in practice, this permits the Courts to scrutinise such decisions not only for process, but also for substance. In this context it is useful to note how Lord Diplock defined the three grounds of review, to wit, (i) illegality,

(ii) irrationality and (iii) procedural impropriety. This is how he put it: By ‘illegality’ as a ground for judicial review I mean that the decision maker must understand directly 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 a dispute, by those S/N nLh1tzyYkabfvXIUkqC4Q persons, the Judges, by whom the judicial power of the state is exercisable. By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’ (see Associated Provincial Picture Houses Limited 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 sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that Judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the Courts’ exercise of this role, resort I think is today no longer needed to Viscount Radcliffe’s ingenious explanation in Edwards (Inspector of Taxes) v. Bairstow [1956] AC 14, of irrationality as a ground for a Court’s reversal of a decision by ascribing it to an inferred though undefinable mistake of law by the decisionmaker. ‘Irrationality’ by now can stand on its own feet as an accepted ground on which a decision may be attacked by judicial review. I have described the third head as ‘procedural impropriety’ rather than failure to observe basic S/N nLh1tzyYkabfvXIUkqC4Q rules of natural justice or failing 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. Lord Diplock also mentioned ‘proportionality’ as a possible fourth ground of review which called for development. Lord Diplock’s first ground for challenge, namely, ‘illegality’, involves insisting that the authority or body whose decision is being impugned has kept strictly within the perimeters of their powers. A good example of this is the case of Westminster City Council v. Great Portland Estates plc. [1985] AC 661, an ultra vires case, involving judicial construction of the Town and Country Planning Act 1971. The question for decision was whether the Act permitted the relevant authorities, by resort to their development plans, to support the retention of traditional industries or was the ambit of the Act such as to permit only ‘land use’ aims to be pursued? It was held that ‘the character of the use of the land, not the particular purpose of a particular occupier’ was the concern of planning and, therefore the authority S/N nLh1tzyYkabfvXIUkqC4Q could not seek to favour any particular occupant or class of occupant. By thus confining the relevant authority strictly to the four walls of the powers conferred upon them by the Act, the Court was involved in the exercise of reviewing the impugned decision for substance and not just process. Lord Diplock’s second ground for challenge, namely, ‘irrationality’ recognises a different route whereby the substance of a decision may be reviewed by the Courts. By this means, Lord Diplock made it clear that despite being legal, that is to say within the powers conferred, a decision may nevertheless, be struck down, for being contrary to substantive principles. In the words of Lord Diplock, ‘a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it’.”.

The role of the High Court in hearing judicial review cases was described in Tenaga Nasional Berhad v. Yahaya Jusoh [2014] 2 CLJ 498 at p 505 as follows: “The role of a High Court in hearing a case of judicial review is highly limited and rules governing judicial review application differ from that of a normal appeal as judicial review is not an appeal from a decision but a review of the manner in which the decision was made. It is not the function of the High Court to review the S/N nLh1tzyYkabfvXIUkqC4Q evidence and substitute its own view of the decision maker and the High Court should not interfere with the decision of the Industrial Court unless there is a real error of law. There are limited exceptions though, where review may extend to substance of the decision and not just the decision making process ie, where there is illegality, irrationality or impropriety.”.

The grounds to support the Applicant’s application as set out in the Amended Statement pursuant to O. 53, r. 3(2) of the Rules of Court 2012 (‘RC 2012’) were whether –

the composition of the DC members was lawfully and duly constituted;

the said Decision was tainted with procedural impropriety and whether the Respondent had relied solely on the evidence given by the Applicant to the MACC in coming to the said Decision;

there was a need for the Respondent to establish an

the Respondent has justified the imposition of disciplinary action for the purpose of dismissal and demotion against the Applicant notwithstanding that there was another limb S/N nLh1tzyYkabfvXIUkqC4Q under its purview, namely disciplinary action not for the purpose of dismissal and demotion; and

the Transfer Directive constituted a form of punishment. Analysis & Findings of the Court 1st Ground: Whether the composition of the DC members was lawfully and duly constituted

The Appendix to paragraphs 1, 2 and 12 in the Third Schedule of Act 605 on the “Composition And Jurisdiction Of Disciplinary Committees And Disciplinary Appeal Committees For Statutory Bodies” stipulates, among others, as follows: “Jawatankuasa Tatatertib Jawatankuasa Rayuan Tatatertib Kategori Pegawai Bidang Kuasa Keanggotaan Jawatankuasa Tatatertib Keanggotaan Jawatankuasa Rayuan Tatatertib Timbalan Ketua Pengarah Kumpulan Pengurusan Tertinggi Kumpulan Pengurusan dan Profesional Kumpulan A di bawah Laporan Tindakan tatatertib dengan tujuan buang kerja atau turun pangkat Pengerusi: Pengerusi Lembaga Anggota: Ketua Setiausaha Kementerian 2 orang anggota Lembaga yang dilantik oleh Pengerusi Pengerusi: Menteri Anggota: 2 orang anggota Lembaga yang dilantik oleh Pengerusi Lembaga” S/N nLh1tzyYkabfvXIUkqC4Q

The Applicant contended that the composition of the DC members was irregular and invalid because the members who sat in the session concerned was not the Ketua Setiausaha Kementerian (‘KSU’) as required but was the Timbalan Ketua Setiausaha (‘TKSU’). Hence, there was procedural irregularity and the said Decision was null and void ab initio.

The Applicant relied on the case of Dato' Kanalingam A/L Velupillai V Bar Council & Anor [2004] 2 MLJ 504 to support the proposition that, if an unqualified member or one whose presence contravenes the governing rules participates in a DC meeting, any decision made would be null and void ab initio.

Paragraph 5 of the Third Schedule, Act 605 provides that: “5. Appointment of substitute member

The Board may, for reasons which shall be recorded, appoint any member of the Board or officer of the statutory body or nominate an officer of the Ministry to sit as the Chairman or a member of a Disciplinary Committee in place of the Chairman or a member specified in the Appendix in any disciplinary proceedings against an officer. S/N nLh1tzyYkabfvXIUkqC4Q

The officer to be appointed under subparagraph (1) as the Chairman or a member of a Disciplinary Committee shall be higher in rank than the officer who is the subject of the disciplinary proceedings.”.

The Respondent submitted, and correctly so, that the composition of the DC members was regular because the TKSU was given approval by the Respondent’s Board of Directors as a substitute member to sit in the DC session concerned and the power which was vested in the TKSU was similar to the KSU. The reason for the substitution was also recorded, among others, that the post of KSU was vacant at the material time.

The Applicant argued, with reference to the case of Kummar Manikam lwn. Lembaga Tatatertib Perkhidmatan Awam Kumpulan Sokongan (No. 1), Pejabat Ketua Pendaftar Mahkamah Persekutuan Malaysia & Yang Lain [2025] 6 CLJ 437, that the Respondent did not exhibit any Minutes of the DC and AC Meetings. Therefore, the Applicant had no access to, or any knowledge of, the matters which were discussed and deliberated upon by the DC and AC prior to the punishment of demotion being imposed. To the Applicant, the Minutes of Meetings were crucial in determining the reasons on why that punishment was decided upon.

As regards the “Kertas Kerja Cadangan Pelantikan Anggota Ganti Bagi Jawatankuasa Tatatertib Dengan Tujuan Buang Kerja Atau Turun Pangkat Bagi Kategori Pegawai Kumpulan Pengurusan dan Profesional PTPK” in exhibit “MFM-1” of the Respondent’s S/N nLh1tzyYkabfvXIUkqC4Q affidavit, the Applicant submitted that the document did not disclose that the substituted member had chaired the meeting at the material time as required under paragraph 5 of the Third Schedule, Act 605.

However, nothing in Act 605 requires the Minutes of the DC and AC Meetings to be disclosed by the Respondent to the Applicant. In Mohd Faizal bin Shaari lwn Majlis Daerah Sabak Bernam dan satu lagi [2017] MLJU 1513, the court said: “[20] Mahkamah bersetuju dengan hujahan peguamcara Pemohon bahawa tiada sebarang undang-undang yang memaksakan Responden Kedua selaku Lembaga Tatatertib untuk membekalkan kepada Pemohon minit mesyuarat Responden Kedua. [Rujuk kes Ghazi bin Mohd Sawi v Mohd Haniff bin Omar, Ketua Polis Negara [1994] 2 MLJ 114] [21] Apatah lagi dalam kes ini Pemohon tidak pernah memohon kepada Responden Kedua untuk dibekalkan sesalinan minit mesyuarat yang berkenaan sebelum tindakan semakan kehakiman ini difailkan. Mahkamah Persekutuan dalam kes Chai Kok Choi v Ketua Polis Negara & Ors [2008] 1 MLJ 725 sebulat suara memutuskan; “…The Court of Appeal was also correct in holding that there is no added duty on the disciplinary S/N nLh1tzyYkabfvXIUkqC4Q authority to provide documents without any request being made by the offending officer…” (see too, Mariani bt Ramli lwn Lembaga Tatatertib Kumpulan Sokongan (No 1) Jabatan Perlindungan Hidupan Liar dan Taman Negara dan lain-lain, [2020] 8

In the instant case, the Applicant never requested for any documents to be brought to the attention of the DC and nor did he request for the Minutes of Meetings before the application for judicial review was filed.

It was only after the court had fixed the dates for the filing of written submissions and the hearing that the Applicant filed the application for discovery to procure the Minutes of Meetings. On 7.5.2025, the court dismissed the Applicant’s application for discovery and no appeal was filed against the decision.

On a final point which was raised by the Applicant, namely concerning the composition of the DC which was successfully challenged in a disciplinary action involving the Respondent and one Mohd Taufiq Bin Saruan, that disciplinary action was a separate matter and was irrelevant to this instant application. The Applicant did not produce any exhibits to support the averment that the composition of the DC in Mohd Taufiq’s case was similar to the Applicant’s. The Applicant’s attempt to draw similarities between his case and Mohd Taufiq’s case did not assist to advance the Applicant’s arguments in his favour. S/N nLh1tzyYkabfvXIUkqC4Q

For the above reasons, the 1st Ground was answered in the affirmative. 2nd Ground: Whether the said Decision was tainted with procedural impropriety and whether the Respondent had relied solely on the evidence given by the Applicant to the MACC in coming to the said

According to the Applicant, he was called to give a statement to the MACC on 13.9.2017 and he admitted stating that he had received the money. However, he firmly contended that the statement was made after being repeatedly pressured by the MACC officer/ Investigating Officer, who allegedly warned that if the Applicant refused to cooperate, his wife, child and family members would be detained for questioning.

The Applicant submitted that the statement given to the MACC does not amount to a confession capable of sustaining a conviction, as to date, no prosecution or legal action was initiated against the Applicant by the MACC and the Applicant has not been called for any further inquiry thereafter. In fact, the MACC had provided written confirmation vide the letter dated 6.5.2021 that the investigation against the Applicant had been completed and no criminal charges under the MACC Act 2009 [Act 694] would be brought against the Applicant. S/N nLh1tzyYkabfvXIUkqC4Q

The Applicant argued that there were irregularities in the Respondent’s decision to impose the punishment of demotion by relying entirely on the Applicant’s statement to the MACC, which was unreasonable and irrational. The Respondent was said to have failed to take into account the explanations provided by the Applicant in the Representation Letter as follows:

the statement given to the MACC does not constitute an admission of guilt, and no conviction or legal action has been taken against the Applicant since he provided the same;

the individual named in the charge i.e. Dr. Nik Mohammad Azli Bin Nik Ariffin (‘Dr. Nik Azli’) had filed a payment claim against the Respondent in court, which was subsequently settled, with all payment claims being ordered to be paid; and

the Attorney General’s Chambers had decided that no charges would be brought against Dr. Nik Azli and his case was classified as “No Further Action”.

After having considered the affidavit evidence and submissions by the parties, I was persuaded by the Respondent’s contention that, in coming to its decision, the DC did not rely solely on the evidence given by the Applicant to the MACC as alleged by the Applicant. On the contrary, the DC had considered the following matters: S/N nLh1tzyYkabfvXIUkqC4Q

the MACC recommended that a disciplinary proceeding be instituted against the Applicant;

the Respondent had proffered a charge against the Applicant and did refer to the MACC Report before framing the same. There is nothing in any written law or rule that prohibits the charge brought against the Applicant by the DC to refer to the MACC Report. Reference to, among others, the MACC Report was to be expected before the charge was framed. More importantly, the Applicant failed to challenge the charge, including to deny the charge and to provide a reasonable explanation in the Representation Letter. The Applicant’s failure to refute specific allegations brought by the DC in the charge amounted to an admission (see Robin Van Buerle & Anor v. Le Reve (Malaysia) Sdn Bhd [2012] 5 CLJ 61). The Applicant then sought to shift the blame onto the Respondent;

it was in the Applicant’s knowledge that the position and responsibilities that he held at the material time involved extensive dealings with Dr. Nik Azli, who was likewise under investigation by the MACC. The Applicant did not deny this fact;

in the Representation Letter, the Applicant stated that the Transfer Directive was an adequate punishment to him. This, again, amounted to an indirect admission of the charge; and S/N nLh1tzyYkabfvXIUkqC4Q

the Applicant failed to deny the accumulated assets seized and confiscated by the MACC during the investigation, which was substantial in value. The Applicant did not challenge the disposal of the seized items, as evident from the Order by the Sessions Court.

Additionally, the averment by the Applicant that the MACC had written to him to inform that the investigation was concluded on 6.5.2021 and no criminal charges will be brought against him and that the Respondent failed to take into consideration that the Applicant was not charged in a criminal court bears no merit. In Ali Nur Fitri Bin Yazid v. Lembaga Tatatertib Kontinjen Selangor [2025] CLJU 938, the court held that once a criminal charge has been instituted against the applicant, a disciplinary proceeding cannot simultaneously be brought against the applicant, so as to avoid the risk of double jeopardy.

Thus, it was procedurally correct for the Respondent to charge the Applicant through the DC as no criminal charges had been instituted against the Applicant.

The 2nd Ground was there answered in the negative, on both aspects of the enquiry. S/N nLh1tzyYkabfvXIUkqC4Q 3rd Ground: Whether there was a need for the Respondent to establish an Investigation Committee

In paragraph 30 of his Affidavit in Support, the Applicant averred that: “Responden Kedua khususnya mempunyai ruang untuk menubuhkan Jawatankuasa Penyiasatan bagi tujuan mendapatkan penjelasan lanjut mengenai kes terhadap Pemohon, dan saya boleh dipanggil untuk memberi penjelasan. Ini dapat dilihat berdasarkan peruntukan Peraturan 35(5) dan Peraturan 36, Peraturan-Peraturan Tatatertib Badan-Badan Berkanun, Jadual Kedua, Akta Badan-Badan Berkanun (Tatatertib dan Surcaj) 2000 [Akta 605]. Namun begitu, tiada sebarang Jawatankuasa Penyiasatan ditubuhkan yang mana saya menegaskan keterangan yang diberikan oleh saya semasa siasatan SPRM adalah tidak memadai untuk tujuan membuat keputusan yakni Turun Pangkat ke atas saya.”.

Regulations 35(5) and 36 in the Second Schedule of Act 605 read as follows: “…

If the appropriate Disciplinary Committee is of the opinion that the case against the officer requires further clarification, the Disciplinary Committee may establish an S/N nLh1tzyYkabfvXIUkqC4Q Investigation Committee for the purpose of obtaining such further clarification. Investigation Committee

(1) The Investigation Committee shall be comprised of not less than two officers of the statutory body or the Ministry.

Members of the Investigation Committee shall be higher in rank than the officer under investigation but the Head of Department of the officer under investigation shall not be a member of the Investigation Committee.”.

The Applicant submitted that, in the absence of an Investigation Committee being established, the Respondent’s reliance on the Applicant’s statements made during the MACC investigation was inadequate to justify the decision to impose the demotion against the Applicant.

In my considered view, it was not mandatory for an Investigation Committee to be established. The matter was for the DC to decide. In Mohd Sobri Che Hassan v. Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai & Anor [2018] 2 CLJ 715, the court held, among others, that: “[37] It is trite that the appointment of the committee of investigation is at the discretion of the Disciplinary Authority and the officer could not demand for the same S/N nLh1tzyYkabfvXIUkqC4Q to be appointed and the court ought not to interfere with the discretion of the Disciplinary Authority. … [40] Hence, guided by the above authorities, we agree with the learned JC, it is for the first respondent to decide whether a committee of investigation ought to be appointed to investigate the charge and the applicant could not demand for the same. This approach is also in tandem with reg. 37(5) of 1993 Regulations which provides as follows:

If the appropriate Disciplinary Authority is of the opinion that the case against the officer requires further clarification, the Disciplinary Authority may establish an Investigation Committee for the purpose of obtaining such further clarification. [41] The words “if the Disciplinary Authority is of the opinion” in the above-mentioned Regulation showed that the discretion is upon the Disciplinary Authority to decide whether a committee of investigation ought to be appointed or otherwise and the court ought not to interfere with that discretion. …”.

The DC had convened to deliberate on all the information available on whether there was a prima facie case against the Applicant. Ultimately, the DC decided there was no need for an Investigation Committee to be established. S/N nLh1tzyYkabfvXIUkqC4Q

The 3rd Ground must therefore be answered in the negative. 4th Ground: Whether the Respondent has justified the imposition of disciplinary action for the purpose of dismissal and demotion against the Applicant notwithstanding that there was another limb under its purview, namely disciplinary action not for the purpose of dismissal and demotion

The Applicant contended that the burden was on the Respondent to justify the imposition of the disciplinary action for the purpose of dismissal and demotion against the Applicant, notwithstanding that there was another limb under the DC’s purview, namely disciplinary action not for the purpose of dismissal and demotion. The Respondent had other alternative punishments available besides demotion.

Furthermore, the was no documentation outlining the reasons and considerations taken by the Respondent in arriving at the decision to impose demotion on the Applicant.

The law governing submissions of this nature is clear; the court should avoid intervention and should not substitute its own view as to the appropriate penalty which should be imposed. In Ng Hock Cheng v Pengarah Am Penjara & Ors [1998] 1 MLJ 153, the Federal Court clearly laid down that: S/N nLh1tzyYkabfvXIUkqC4Q “A court intervenes only on the nature and manner of accusation against a public officer as distinct from a consequential punishment. The court should not substitute its own view as to which was the appropriate penalty for the employee’s misconduct, and whether the punishment should be a dismissal or a lesser penalty like a reduction in rank was not for the court to say. An employer, including a government, is the best person to judge the seriousness of misconduct of an employee.”.

This Court cannot interfere with the Respondent’s findings unless the elements of illegality, irrationality and/ or disproportionality have been established. In the final analysis, the instant application was nothing more than an attempt to cloak dissatisfaction with a claim of disproportionality.

Before closing on the 4th Ground, the Respondent had raised the point that the disciplinary action “Tujuan Buang Kerja atau Turun Pangkat Bagi Ketua Eksekutif, Timbalan Ketua Eksekutif, Kumpulan Pengurusan Tertinggi Dan Kumpulan Pengurusan & Profesional Perbadanan Tabung Pembangunan Kemahiran” dated 20.4.2021 was not issued by the AC, but by the DC. Hence, the Applicant had erred when seeking the reliefs which are reproduced below: “(i) Bahawa Pemohon diberikan kebenaran (leave untuk Semakan Kehakiman bagi mendapatkan satu Perintah Certiorari untuk membatalkan tindakan / keputusan Turun Pangkat yang telah S/N nLh1tzyYkabfvXIUkqC4Q diputuskan oleh Jawatankuasa Rayuan Tatatertib Dengan Tujuan Buang Kerja Atau Turun Pangkat Bagi Ketua Eksekutif, Timbalan Ketua Eksekutif, Kumpulan Pengurusan Tertinggi Dan Kumpulan Pengurusan & Profesional Perbadanan Tabung Pembangunan Kemahiran (PTPK) melalui surat No. Ruj: PTPK.(S).PSM.I.500-4/10/4 Jld 2(3) bertarikh 6.9.2022.

(ii) Bahawa segala prosiding, perlaksanaan dan semua tindakan lanjut berkenaan dengan keputusan Turun Pangkat yang telah diputuskan oleh Jawatankuasa Rayuan Tatatertib Dengan Tujuan Buang Kerja Atau Turun Pangkat Bagi Ketua Eksekutif, Timbalan Ketua Eksekutif, Kumpulan Pengurusan Tertinggi Dan Kumpulan Pengurusan & Profesional Perbadanan Tabung Pembangunan Kemahiran (PTPK) melalui surat No. Ruj: PTPK.(S).PSM.I.500-4/10/4 Jld 2(3) bertarikh 6.9.2022 digantung sehingga pelupusan Permohonan untuk Semakan Kehakiman yang difailkan ini. ...” (emphasis added).

In the premises, the 4th Ground was answered in the affirmative. S/N nLh1tzyYkabfvXIUkqC4Q 5th Ground: Whether the Transfer Directive constituted a form of punishment

The Applicant emphasised that during his service with the Respondent, he had never been subjected to any disciplinary action until the demotion was imposed. The Transfer Directive, while the disciplinary proceedings against him were still pending, was said to amount to an indirect punishment, even though the Applicant was not found guilty of any criminal offence under the MACC Act 2009.

The Applicant was also aggrieved by the fact that he missed the opportunity to attend the Grade N52 interview in February 2022.

In terms of timing, the Transfer Directive was issued when the Applicant’s appeal against the decision of the DC was pending. The crux of the matter was that the Applicant has assumed or speculated that the Transfer Directive was a form of punishment whereas it had no relation whatsoever to the disciplinary proceedings against the Applicant.

I accepted the Respondent’s submission that the Transfer Directive was bona fide as –

the Memo of Transfer dated 14.3.2022 was enforced after the Applicant was demoted from Grade N48 to N44 and it stated that the Applicant’s position as “Pengurus Pejabat UTC Kedah” does not affect the current grade eligibility and the scheme of service at the Respondent’s Headquarters. S/N nLh1tzyYkabfvXIUkqC4Q The words “does not affect the current grade” reflect the fact that, at the material time, the Applicant was already demoted to Grade N44;

the Respondent had taken into consideration the Applicant’s service at its Headquarters before being transferred to Pejabat UTC Kedah;

the Transfer Directive was for the purpose of a restructuring exercise, which did not involve the Applicant alone, but also other officers of the Respondent of a similar grade. The Transfer Directive was within the Respondent’s jurisdiction to ensure the stability and sustainability of the Respondent in the long run, particularly with the objective of strengthening and enhancing the performance of repayment collection at the Respondent’s Regional Office [Pejabat Wilayah/ Pusat Transformasi Bandar (UTC)] in line with the decision by Mesyuarat Jawatankuasa Kutipan Bayaran Balik Pinjaman Latihan Kemahiran which was to expand the function of the UTC as Call Centres Hub; and

based on Pekeliling Perkhidmatan Bilangan 3 Tahun 2004, any transfer may be affected on the instruction of the HoD or on application of an officer with the approval of the HoD based on the exigencies of the service without being bound by the period of service. The Applicant’s transfer was issued in line with the said circular under the instruction of the HoD. S/N nLh1tzyYkabfvXIUkqC4Q

As regards the Grade N52 interview, the Applicant was not eligible to attend the same as he had failed the “Laporan Tapisan Keutuhan SPRM”. The Respondent had applied to the MACC to obtain the said Report to consider the Applicant’s acting appointment and promotion. However, none of these could be undertaken as the said Report confirmed that the Applicant’s case was still under investigation by the MACC. The Applicant was also not eligible to be considered for the interview pursuant to the “Syarat-Syarat Pemangkuan, Pekeliling Perkhidmatan Sumber Manusia (UP.3) Urusan Pemangkuan Dan Kenaikan Pangkat Dalam Perkhidmatan Awam”.

The 5th Ground was therefore answered in the negative.

In summary, the Applicant was given the opportunity to be heard. The Applicant attempted, but ultimately failed, to refute and exonerate himself from the allegation made against him. The Applicant was further given the opportunity to appeal to the AC.

The Applicant did not discharge the burden of proving that the Respondent’s or the DC’s actions amounted to procedural impropriety, irrationality and/ or illegality (see Dr Mohamed Sulaiman Sultan Suhaibuddeen v. Ketua Pengarah Perkhidmatan Awam Jabatan Perkhidmatan Awam Malaysia & Ors [2023] 3 MLRH and Professor Madya Dr Prema Sukumaran v. Profesor Dr Zamri Radzi & Anor [2024] MLRHU 453). S/N nLh1tzyYkabfvXIUkqC4Q Conclusion

Premised on the aforesaid considerations, the application was dismissed with costs of RM10,000.00, subject to allocator.

The Respondent’s counsel also applied for costs for two interlocutory applications where costs were ordered to be in the cause, namely the Respondents’ application to set aside the original 1st and 2nd Respondents as Respondents in the application for judicial review (encl. 19), which was allowed, and the Applicant’s application for discovery (encl. 46), which was dismissed. Accordingly, I ordered costs of RM3,000.00 to be paid by the Applicant to the Respondent for each application, also subject to allocator. DATED: 25.3.2026 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR (BKK1) S/N nLh1tzyYkabfvXIUkqC4Q Solicitors for the Applicant: Siti Rafidah Binti Abdul Raof Messrs. Aswandi Hashim & Co. Solicitors for the Respondent: Zalina Hashim (Ahmad Kamil Mohd Sorihan with him) Messrs. Z. Hashim & Co. S/N nLh1tzyYkabfvXIUkqC4Q