Mohammad Irwan Bin Busrah v Lembaga Rayuan Tatatertib Perkhidmatan Awam (WA-25-13-01/2023)

LEMBAGA RAYUAN TATATERTIB

LEMBAGA TATATERTIB KUMPULAN SOKONGAN (NO.1)

INSTITUT LATIHAN PERINDUSTRIAN (ILP) KUALA LUMPUR ... RESPONDENTS

By way of this judicial review application, the Applicant primarily challenged the decision by the 1st Respondent (‘R1’) dated 19.9.2022 (‘Impugned Decision’) in dismissing the Applicant’s appeal against the determination by the 2nd Respondent (‘R2’) on 20.1.2022 which found the Applicant guilty of two disciplinary charges.

The reliefs sought by the Applicant were, among others, as follows:

for an order of certiorari to quash R1’s decision in dismissing the Applicant’s appeal and finding in favour of R2 and the 3rd Respondent (‘R3’) in relation to the Applicant’s dismissal from service based on the letter from R1 dated 19.9.2022 (’19.9.2022 Letter’), which was received by the Applicant on 25.10.2022; and

for an order to be reinstated to his last-held position as Penolong Pegawai Latihan Vokasional Gred DV29 without loss of seniority, together with arrears of salary including emoluments, allowances and other benefits from the date that the Applicant last received his salary until full settlement.

After having considered the cause papers and the oral and written submissions by the learned counsels who represented the parties, I had, on 2.4.2026, dismissed the Applicant’s application.

The Applicant is naturally dissatisfied with the decision and he has filed a Notice of Appeal.

These are my full Grounds of Judgment.

The salient background facts as gleaned from the Applicant’s written submission are as follows.

The Applicant commenced service with R3 on 16.8.2007 at the Industrial Training Institute, Kota Bharu, Kelantan.

In early 2015, the Applicant was transferred to the Industrial Training Institute, Kuala Lumpur.

As early as 2015, the Applicant began experiencing health issues arising from his mental condition.

In May 2017, the Applicant was diagnosed to be suffering from “Generalized Anxiety Disorder with features of depression” by the Department of Psychiatry and Mental Health, Hospital Kuala Lumpur (‘DPMH HKL’). The Applicant was also referred to undergo Occupational Therapy for stress management training.

Following from this condition, the Applicant was subsequently diagnosed with “Obsessive Compulsive Disorder” during a follow-up treatment on 22.6.2018. The details of the examination and treatment of the Applicant’s mental condition are contained in the written reports by Dr. Isabel Shamini David and Dr. Mohd. Hafiz Norzan, Consultant Psychiatrists, DPMH HKL dated 3.7.2018 and 12.1.2021, respectively.

Throughout the period from 2017 until 2021, the Applicant claimed that he suffered serious health issues which required him to take medical leave and at times, rendered him unable to attend work. He also lived apart from his family and friends who were unaware of his whereabouts.

The Applicant alleged that his absence was fully within the knowledge of R3. The Applicant had also, from time to time, furnished copies of medical leave certificates and records of his treatment at the DPMH HKL.

Subsequently, 13 Show Cause Letters were issued to the Applicant due to his absenteeism. These Show Cause Letters were dated 30.5.2017, 14.11.2017, 9.1.2018, 14.2.2018,

14.3.2018, 12.4.2018, 27.11.2020, 8.12.2020, 11.11.2021,

9.3.2021, 18.11.2021, 1.12.2021 and 7.1.2022.

On 20.5.2021, R2 informed the Applicant that they have received a report stating that the Applicant has committed offences for which disciplinary proceedings can be taken against the Applicant. R2’s Chairman was of the opinion that disciplinary proceedings should be taken against the Applicant with a view to dismiss or reduce him in rank pursuant to Regulation 37 of the Public Officers (Conduct and Discipline) Regulations 1993 [P.U.(A) 395 of 1993] (‘1993 Regulations’).

Two charges were brought against the Applicant as follows:

First Charge That the Applicant was absent without leave or reasonable cause for a total of 1,033 days from 15.4.2015 to 12.11.2020.

Second Charge That the Applicant submitted forged Government medical certificates (‘said MC’) dated 15.4.2015, 4.5.2015,

28.5.2015 and 8.7.2015 to support his absence without leave. The Applicant was informed that disciplinary action can be taken for his conduct as outlined in the above charges pursuant to Regulation 24 of the 1993 Regulations read together with Regulations 4(2)(f), 4(2)(g) and 4(2)(i) of the 1993 Regulations.

The Applicant was directed to submit his representation within 21 days from the date of receipt of the letter dated 20.5.2021.

Subsequently, the Applicant submitted his representation dated 25.6.2021 to R1 (‘Representation’).

On 20.1.2022, R1 wrote to inform the Applicant of R1’s decision whereby the Applicant was found guilty of both charges and the punishment imposed in respect of –

the First Charge was forfeiture of emoluments under Regulation 38(c) of the 1993 Regulations; and

the Second Charge, was dismissal under Regulation 38(g) of the 1993 Regulations, both with effect from 8.12.2021. Based on Regulation 15(1) of the 1993 Regulations, the Applicant was given a period of 14 days to submit an appeal to R1.

The Applicant submitted his appeal to R1 on 24.2.2022.

In the 19.9.2022 Letter, R1 affirmed R2’s decision.

Aggrieved with the rejection of his appeal by R1, the Applicant filed the instant application on 19.1.2023.

Leave to commence judicial review proceedings was allowed by the Court on 2.3.2023.

This Court had summarised the key legal principles in Mohammad Izzuddin bin Zulkifly v Suruhanjaya Pasukan Polis & Ors [2026] MLJU 1002 in the following manner: “20. In Nor Azlinda bt Mohd Abdullah v Jawatankuasa Tatatertib Kumpulan Bukan Eksekutif (JKTKBE) Tabung Haji & Ors [2026] MLJU 580, this Court said: “33. The legal principles which can be discerned from the case authorities as cited by the parties in the instant application may be summarised as follows:

judicial review is not an appeal from a decision but a review of the manner in which the decision was made. The High Court does not sit in its appellate jurisdiction, but rather, in its supervisory jurisdiction. The Court is more concerned with the decision-making process and not the decision itself. The Court is not entitled on an application for judicial review to consider whether the decision itself, on the merits of the facts, was fair and reasonable. The Court is merely to quash the decision of the relevant authority, if required, and not to substitute the decision with what it thinks is the correct decision [see Harpers Trading

(M) Sdn Bhd v National Union Of Commercial Workers [1991] 1 MLJ 417 (SC), Michael Lee Fook Wah v Menteri Sumber Tenaga Manusia Malaysia & Anor [1998] 1 CLJ 227 (CA) and Ketua Pengarah Hasil Dalam Negeri v Alcatel-Lucent Malaysia Sdn Bhd & Anor [2017] 2 CLJ 1 (FC)]; …”.

The renowned passage from the judgment by Lord Diplock in Council of Civil Service Unions & Ors. v. Minister for Civil Service [1985] 1 AC 374 at pp 410 and 411 on judicial review of administrative actions, and as adopted by the Federal Court in R Rama Chandran v The Industrial Court Of Malaysia & Anor [1997] 1 MLJ 145, reads: “Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, 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 by now be succinctly referred to as ‘Wednesbury unreasonableness’ (Associated Provincial Picture Houses 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 sensible 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 or failure 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 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.” [see too, Minister of Home Affairs, Malaysia v. Persatuan Aliran Kesedaran Negara [1990] 1 CLJ (Rep) 186 (SC)].

The well-established Wednesbury principle of reasonableness as explicated in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 specifies that a decision is unlawful where the decision-maker has –

taken into account matters which ought not to have been considered;

failed to take into account matters which ought to have been considered; or

reached a conclusion so unreasonable that no reasonable authority could ever have arrived at it.

In subsequent decisions by the Federal Court, we are reminded that not every case is amenable to the Rama Chandran approach and it all depends on the factual matrix and/ or the legal modalities of the case. In Ranjit Kaur a/p S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 6 MLJ 1, it was held, among others, that: “[16] The Rama Chandran decision has been regarded or interpreted as giving the reviewing court a license to review without restrain decisions for substance even when the said decision is based on finding of facts. However, post Rama Chandran cases have applied some brakes to the courts’ liberal approach in Rama Chandran. The Federal Court in the case of Kumpulan Perangsang Selangor Bhd v Zaid Noh [1997] 1 MLJ 789; [1997] 2 CLJ 11 after affirming the Rama Chandran decision held that there may be cases in which for reason of public policy, national interest, public safety or national security the principle in Rama Chandran may be wholly inappropriate.” (see too, Kumpulan Perangsang Selangor Selangor Bhd v Zaid Noh [1997] 1 MLJ 789, Petroliam National Bhd v Nik Ramli Nik Hassan [2004] 2 MLJ 288 and Alam Venture Sdn Bhd & Anor v. Abdul Aziz Abdul Majid & Ors [2015] 5 CLJ 1).

In reviewing decision of disciplinary authorities, the courts have very limited review powers over administrative determinations of public bodies and are constrained to confirm the findings in disciplinary hearings. The courts cannot rehear the case by reweighing and reassessing the evidence since weighing and assessing the evidence is the function of the disciplinary authority. The courts cannot interfere merely because it may come to different conclusions on facts on the same basis of the same evidence. The courts will only intervene where there was a fundamental procedural flaw, namely, where there has been an error in the process or there was procedural irregularity in the decision-making proceedings leading to the public officer’s dismissal (see Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3

As regards the issue on whether an officer has exculpated himself from the disciplinary charges against him by his written representation, it is for the disciplinary authority, and not the courts, to decide on this matter (see Public Services Commission Malaysia & Anor v Vickneswary a/p RM Santhivelu (substituting M Senthivelu a/l R Marimuthu, deceased) [2008] 6 MLJ 1).”.

In the Written Submission, the Applicant raised eight issues. After the hearing, these were streamlined into the following six issues as seen in the Joint Scott Schedule, namely whether –

there was non-compliance with Regulations 25 and 26 of the 1993 Regulations in reporting the Applicant’s prolonged absence;

the Second Charge was subject to double jeopardy or prior punishment;

the delay from 2015 to 2021 amounts to an inordinate delay and/ or condonation;

the Respondents’ failure to consider the Applicant’s medical evidence and to convene an Investigation Committee (‘IC’) under Regulation 37(5) of the 1993 Regulations amounted to procedural unfairness;

the Respondents failed to give reasons in deciding to dismiss the Applicant; and

the Respondents considered irrelevant matters, failed to take into account relevant considerations, and whether the decision to dismiss the Applicant was disproportionate. Analysis & Findings of the Court 1st Ground: Whether there was non-compliance with Regulations 25 and 26 of the 1993 Regulations in reporting the Applicant’s prolonged absence

Regulations 24, 25 and 26 of the 1993 Regulations provide the following: “Disciplinary action for absence without leave

An officer’s absence from duty without leave or without prior permission or without reasonable cause shall render him liable to disciplinary action. Procedure in cases of absence without leave

25.

Where an officer is absent from duty without leave or without prior permission or without reasonable cause, his Head of Department shall, as soon as possible, report that fact together with the dates and circumstances of such absence and any further information in respect of such absence to the appropriate Disciplinary Authority.

The appropriate Disciplinary Authority may, after considering the report of the Head of Department under subregulation (1), institute disciplinary action against the officer. Procedure where officer is absent without leave and cannot be traced

26.

Where an officer is absent from duty without leave or without prior permission or without reasonable cause for seven consecutive working days and cannot be traced, his Head of Department shall cause a letter to be delivered personally or sent by A.R. registered post to the officer at his last-known address, directing the officer to immediately report for duty.

If, after the letter is delivered –

the officer reports for duty; or

the officer fails to report for duty or no news is heard from him, his Head of Department shall submit a report to the appropriate Disciplinary Authority and the Disciplinary Authority shall institute disciplinary action against the officer.

If the letter cannot be delivered in person to the officer by reason of the fact that he is no longer residing at his last-known address or if the A.R. registered letter is returned undelivered, the Head of Department shall report the matter to the Disciplinary Authority having the jurisdiction to impose a punishment of dismissal or reduction in rank upon the officer.

The appropriate Disciplinary Authority shall, upon receiving the report referred to in subregulation (3) take steps to publish a notice in at least one daily newspaper published in the national language and having national circulation as determined by the Disciplinary Authority –

of the fact that the officer has been absent from duty and cannot be traced; and

requiring the officer to report for duty within seven days from the date of such publication.

If the officer reports for duty within seven days from the date of publication of the notice referred to in subregulation (4), his Head of Department shall report the matter to the appropriate Disciplinary Authority and the Disciplinary Authority shall institute disciplinary proceedings against the officer.

If the officer fails to report for duty within seven days from the date of the publication of the notice referred to in subregulation (4), the officer shall be deemed to have been dismissed from the service with effect from the date he was absent from duty.

The dismissal of an officer by virtue of subregulation (6) shall be notified in the Gazette.”.

The Applicant contended that R3’s Head of Department (‘HoD’) failed to report the Applicant’s alleged absence “seberapa segera” to R2 resulting in the disciplinary action being initiated only six years later (calculated from 2015 to 2021). This breach gave rise to procedural impropriety and resulted in delay which prejudiced the Applicant as elaborated under the 3rd Ground.

The learned Federal Counsel (‘FC’) submitted for the Respondents that absence without leave and disciplinary action involve two distinct procedures, and disciplinary action cannot commence without proper investigation and gathering of facts being carried out. The FC outlined the interplay between Regulations 24, 25 and 26 of the 1993 Regulations and how these provisions were complied with in this case in her Written Submission for the Respondents.

Strikingly, Regulation 25 of the 1993 Regulations requires the HoD to report the facts with dates and circumstances of the absence and any further information, as soon as possible, to the appropriate Disciplinary Authority and no specific time limit is imposed on the HoD in doing so.

In Public Services Commission Malaysia & Anor v Vickneswary a/p RM Santhivelu (substituting M Senthivelu a/l R Marimuthu, deceased) [2008] 6 MLJ 1, the apex court held that: “[34] The general orders do not provide for the time when a disciplinary action is required to be taken against any officer for a disciplinary offence. Applying the principles earlier stated that where procedure is provided by written laws then the courts should be wary of invoking common law, the delay, even if there was one, is not a ground for holding that there was a procedural unfairness.”.

The fact-gathering exercise involving dates, events and any information pertaining to the Applicant’s intermittent absence from duty without leave, before reporting the matter to the Disciplinary Authority, was lucidly explained in R3’s Affidavit In Reply (‘AIR’; encl. 15).

During the material time, R3 had actively pursued the matter administratively by issuing the Show Cause Letters, a warning for the said MC and an order for forfeiture of emolument pursuant to Chapter C of the General Orders. Upon the completion of investigations in 2020, R3 immediately reported the matter to R2.

I was persuaded by the Respondents’ submission that, as the HoD, R3 had fulfilled the pre-requisites of Regulation 25 of the 1993 Regulations in handling the Applicant’s absence without leave.

Moving on to Regulation 26 of the 1993 Regulations, R3 had issued a letter dated 6.6.2018 through A.R. Registered Post to the Applicant’s last known address directing the Applicant to immediately report for duty as required under Regulation 26(1). The said letter was returned undelivered the next day to R3 as it was unclaimed.

Regulation 26(3) does not impose any time limit for the HoD to report to the relevant Disciplinary Authority for the imposition of punishment. Thus, R3 took the initiative to issue a second letter dated 16.8.2018, again through A.R. Registered Post, directing the Applicant to report for duty immediately. The second letter was also returned undelivered.

R3 then took the additional following measures in an attempt to locate the Applicant:

visited his last known address at D-3-6, Taman Sejahtera, Jalan 12/42A, Off Jalan Kuching, 51200 Kuala Lumpur on 16.8.2018;

contacted the Applicant’s mother via Whatsapp on 27.7.2018; and

conducted a search with the Immigration Department and National Registration Department on 12.5.2019.

Finally, R3 submitted a report in March 2019 to R2 regarding the Applicant’s misconduct as required by Regulation 26(3). Throughout that material time, the Applicant did not inform R3 as to the reasons for his absence without leave or his location. The Applicant also did not give any notice to R3 pertaining to the mental illness treatment that he allegedly underwent.

On 13.11.2020, R2 published a notice relating to the Applicant’s absence without leave in two newspapers i.e. Utusan Sarawak and Utusan Malaysia, requiring the Applicant to report for duty within seven days of the notice as stipulated under Regulation 26(4). It was only upon the publication of the notice that the Applicant then reported for duty on the same day.

Upon the Applicant returning to work on 17.11.2020, R3 conducted further investigations and prepared a report on the matter and submitted the same to R2’s Chairman pursuant to Regulation 26(5).

Based on the affidavit evidence, I was satisfied that the requirements under Regulation 26 of the 1993 Regulations were fulfilled by the Respondents. There was no procedural impropriety on the part of the Respondents in handling the Applicant’s absence without leave.

In the premises, the 1st Ground was answered in the negative. 2nd Ground: Whether the Second Charge was subject to double jeopardy or prior punishment

The Applicant argued that he was issued a Show Cause Letter dated 9.1.2018 regarding the said MC which were the same as the ones mentioned in the Second Charge, and he had submitted his response in the letter dated 7.3.2018.

The Applicant averred that he was called by En. Mohd. Faizal, Deputy Director of Human Resource Management and was given a stern verbal warning. En. Moktar from the Management Services Division also agreed not to continue with any punishment for the offence in view of the verbal warning.

Hence, by re-charging the Applicant in 2021 for the same matter that had previously been dealt with by way of a verbal warning, and being subjected to emolument deductions for the alleged absence from work, and subsequently imposing the punishment of dismissal, the Respondents had subjected the Applicant to double jeopardy/ punishment in breach of the principles of natural justice. In the Representation, the Applicant had stated in respect of the Second Charge as follows: “Huraian dan tindakan yang dikenakan terhadap saya atas pertuduhan yang belaku pada 2015. i. Bahagian Khidmat Pengurusan (BKP) Institut Latihan Perindustrian Kuala Lumpur (ILPKL) telah membuat semakan Sijil Sakit dan mendapatkan pengesahan daripada Kementerian Kesihatan Malaysia (KKM) serta mendapati Sijil Sakit saya tidak sah seperti pada surat maklumbalas KKM pada 27 Ogos 2015. ii. Penolong Pegawai Tadbir (PPT) N36 ILPKL pada tahun 2015 telah memaklumkan kesalahan saya tersebut dengan memberi penjelasan secara lisan serta tindakan yang akan dikenakan. Saya mengakui akan kesalahan dan akur akan tindakan yang akan dikenakan. iii. Bagi hukuman tersebut saya diarahkan untuk berjumpa dengan Timbalan Pengarah Pengurusan Sumber (TPPS) pada masa itu iaitu En Mohd Faisal bin Abdul Hamid. Semasa perjumpaan tersebut secara lisan, saya mengakui kesalahan saya dan TPPS juga telah telah memberi amaran secara lisan juga akan kesalahan yang saya lakukan dan beliau berharap perkara tersebut tidak berulang lagi. iv. Sehubungan itu, atas pertimbangan budibicara TPPS dan PPT institut saya dimaklumkan, juga secara lisan kesalahan tersebut tidak direkod dan berharap permasalahan tersebut tidak berlaku lagi.”.

After scrutinising the affidavit evidence, I find that, contrary to the Applicant’s submission that there were three consecutive disciplinary proceedings against him for the same offence, there was actually only one disciplinary proceeding that took place, the details of which were elaborated in detail in the FC’s Written Submission (see paragraph 8.1, encl. 31).

Crucially, the principle of double jeopardy has no application in disciplinary proceedings as consistently established in numerous case authorities such as Mohamed Yusoff Bin Samadi v. Attorney-General [1975] 1 MLJ 1 and Kamarudin Bin Mamat v Ketua Polis Negara & Anor [2004] 4 MLJ 201. In the latter case, Low Hop Bing J provided the following insightful discussion on the principles governing the rule against double jeopardy: “[31] …

The rule against double jeopardy is one of the fundamental liberties enshrined in art 7(2) in the following words : 7 Protection against retrospective criminal laws and repeated trials

A person who has been acquitted or convicted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and a retrial ordered by a court superior to that by which he was acquitted or convicted.

This is a constitutional entrenchment of the pleas of autrefois acquit or autrefois convict: per Chua J (as he then was) in Mohamed Yusoff bin Samadi v Attorney-General [1975] 1 MLJ 1.

The constitutional provisions in art 7(2) apply to criminal cases only and has no application to disciplinary matters which are governed by the common law doctrine of autrefois conviction and autrefois acquit (see (7) below): per Arifin Zakaria J (now JCA) in Zakaria bin Abdul Rahman v Ketua Polis Negara Malaysia & Anor [2001] 3 MLJ

385.

In order to operate as a bar under art 7(2), the accused must prove that the second prosecution or trial must be either (a) for the same offence or (b) of the same facts for any other offence for which a different charge from the one made against him might have been made: per George Sean SCJ in Jamali bin Adnan v Public Prosecutor [1986] 1 MLJ 162;

…

No principle of law precludes a man who has been acquitted or convicted upon a set of facts alleged to constitute an offence being subsequently subjected upon the same facts to disciplinary action by a domestic tribunal, and it was not improper for, eg the Public Service Commission to institute disciplinary proceedings as the exercise of its powers was not by way of punishment but rather to enforce a high standard or propriety and professional conduct: per Chua J (as he then was) in Mohamed Yusoff.

The common law doctrine of autrefois convict and autrefois acquit would apply to disciplinary proceedings under a statutory code by which a profession was governed, so that a person cannot be subjected to two proceedings based on the same facts, and hence the order of suspension made against him in the first proceeding is a complete bar to further disciplinary action against him in the second proceeding: per Lord Bridge of Harwich in Harry Lee Wee v Law Society of Singapore [1985] 1 MLJ 1; as followed by Arifin Zakaria J (now JCA) in Zakaria Abdul Rahman. [32] In order to avail himself of the common law doctrine against double jeopardy, it is incumbent upon the plaintiff to prove that:

the dismissal proceedings are second disciplinary proceedings for the same disciplinary offence or offences as in the aforesaid three charges; or

the dismissal proceedings are based on the same facts as those in the unpleaded issues. [33] On the agreed facts and the evidence adduced herein, it is my specific finding that the dismissal proceedings were the only disciplinary proceedings against him. It appears obvious to me and I accept the evidence of DW1 that there was no reduction in rank as the plaintiffs substantive post was that of a Chief Inspector at all material time. [34] Further, there is no evidence before me that the dismissal proceedings are based on the same facts as those in the unpleaded issues.”.

In paragraph 17 of R1’s AIR (encl. 13), Tan Sri Dato’ Seri Utama Zainal Rahim Bin Seman, Chairman of the Public Service Commission and R1’s Chairman had affirmed that: “17. … Selanjutnya, saya telah dinasihatkan oleh Peguam Persekutuan dan sesungguhnya percaya bahawa tiada sebarang tindakan, pertuduhan dan/atau hukuman dikenakan di bawah Peraturan 1993 terhadap Pemohon atas kesalahan mengemukakan sijil cuti sakit Kerajaan palsu tersebut. Pemohon pertama kali dipertuduhkan dengan Pertuduhan Kedua tersebut melalui Surat Tindakan Tatatertib.”.

Applying the aforesaid legal principles to the instant application, there was no evidence that the disciplinary proceedings in 2021 as regards the Second Charge were for the same “disciplinary offence” in 2018.

In 2018, a Show Cause Letter was issued to the Applicant for which he had provided his explanation. The Applicant was given a verbal warning and the matter ended there without it being escalated into a disciplinary proceeding. The warning was not issued as a punishment following a finding of guilt in a disciplinary proceeding.

I therefore find and hold that there was no merit in the 2nd Ground. 3rd Ground: Whether the delay from 2015 to 2021 amounts to inordinate delay and/ or condonation

The Applicant took the position that the delay of six years before the commencement of formal disciplinary proceedings against him was excessive and that it was not a mere administrative lapse, but a violation of the statutory duty to act promptly.

According to the Applicant, the delay prejudiced his defence, particularly in accessing records of his attendance and medical certificates. Furthermore, he suffered direct financial prejudice because, since 2017, his emoluments were continuously forfeited, and he was later required to refund the sums paid resulting in a total recovery of RM18,599.00. These losses accumulated during the prolonged period in which the Respondents failed to take timely disciplinary action.

The Applicant additionally contended that he was allowed to resume duty in November 2020, thereby creating a legitimate expectation that the matter had been condoned, thus rendering his dismissal as unlawful and void ab initio.

In Vickneswary (supra, at p 13), the Federal Court further illuminated that: “[30] Since case authorities say that whether there is unreasonable delay depends on the circumstances of each case, delay per se cannot be construed against the appellant. …”.

The Court considered the issues of whether the delay was reasonable and whether a case of condonation was established in the following passage (supra, at pp 14 and 16): “[32] Even if what is claimed by the respondent in his letter is accepted as true, the delay, as mentioned above was substantially caused by the police, and not the disciplinary authority. Delay by the disciplinary authority, even if it is considered as delay, was for a period of two and a half years, instead of seven years as accepted by the Court of Appeal in its judgment. [33] In order for the court to decide whether any delay is reasonable or not, the appellant must have been given the opportunity to explain the reasons for such delay and this can only be done if such delay was pleaded and becomes an issue to be considered by the court (see Harbajan Singh v Suruhanjaya Pasukan Polis Malaysia & Anor [2002] 3 MLJ 714, Tai Choi Yu v Government of Malaysia [1994] 1 MLJ 678 and Gimstern Corporation (M) Sdn Bhd v Global Insurance Co Sdn Bhd [1987] 1 MLJ 302). … [39] On the question of condonation raised by the respondent and referring to the case of Azman bin Abdullah v Ketua Polis Negara [1997] 1 MLJ 263, I hold, in this present case, that there was no condonation. Condonation in the context of employment contract is an act by the employer to excuse or forgive him for the wrongful act committed by the employee. Condonation can be in the active form ie by the act of telling the person that he has been forgiven for the wrongful act done or by a passive act of not taking any action. Halsbury’s Laws of England (4th Ed) Vol 16 at p 439 para 648 describe condonation as follows: “An employer who with full knowledge of his employee’s misconduct elects to continue him in service cannot subsequently dismiss him for the offence which he has condoned.” In our case, the 2nd appellant cannot be said to have condoned the acts of the deceased because the deceased, as admitted by him in his letter, was interdicted (“ditahan kerja”).”.

In response to the Applicant’s averments, R2 affirmed as follows in the AIR (encl. 14): “15. … Saya selanjutnya telah dinasihatkan Peguam Persekutuan dan sesungguhnya menyatakan bahawa:-

Sebelum sebarang tindakan tatatertib diambil terhadap Pemohon, siasatan tatatertib perlu dijalankan terlebih dahulu dan prosedur-prosedur bagi tindakan tatatertib yang diperuntukkan di bawah Peraturan 1993 perlu dipatuhi.

Pemohon telah menghilangkan diri dan tidak dapat dikesan mulai Jun 2018 hingga November 2020.

Berdasarkan rekod, pelbagai usaha telah dilakukan Responden Ke-3 termasuk membuat semakan dengan Jabatan Imigresen Malaysia dan Jabatan Pendaftaran Negara pada 12.5.2019 memandangkan sepanjang tempoh tersebut, Responden Ke-3 tidak menerima apa-apa makluman daripada Pemohon berkenaan status kehadiran atau lokasi keberadaan Pemohon dan tiada pemakluman lanjut berkenaan rawatan perubatan sakit mental yang dikemukakan Pemohon kepada Responden Ke-3.

Sebaliknya, Pemohon hanya melapor diri pada 13.11.2020 setelah notis berhubung ketidakhadiran bertugas Pemohon disiarkan di bawah Peraturan 26(4) dalam Utusan Sarawak dan Utusan Malaysia pada 13.11.2020.

Oleh itu, laporan pelanggaran tatakelakuan Pemohon telah diterima Responden Ke-2 secara teratur pada Mac 2019 setelah siasatan diperingkat Responden Ke-3 selesai.

Tindakan tatatertib terhadap Pemohon telah diambil dalam tempoh masa yang munasabah setelah melaksanakan siasatan tatatertib dan mematuhi prosedur-prosedur bagi tindakan tatatertib yang diperuntukkan di bawah Peraturan 1993.

Sebagai tambahan, tiada sebarang peruntukkan undang-undang yang menetapkan tempoh masa yang spesifik untuk suatu tindakan tatatertib diambil.

Oleh itu, tidak wujud sebarang kelewatan dalam mengambil tindakan tatatertib terhadap Pemohon memandangkan tindakan tatatertib telah diteruskan sehingga Pemohon dibuang kerja berkualkuasa pada 8.12.2021. …

… Saya telah dinasihatkan Peguam Persekutuan dan sesungguhnya menyatakan bahawa tindakan tatatertib terhadap Pemohon telah dilaksanakan mengikut segala prosedur yang ditetapkan oleh Peraturan 1993. Saya juga telah dinasihatkan Peguam Persekutuan dan sesungguhnya menyatakan bahawa: -

Pelucutan hak emolumen kerana tidak hadir bertugas tanpa cuti atau tanpa kebenaran terlebih dahulu atau tanpa sebab yang munasabah adalah berdasarkan Perintah Am, Bab C, Peraturan. Ianya bukan lah suatu hukuman yang dikenakan di bawah

Dakwaan bahawa Pemohon terpaksa menanggung kerugian untuk membayar semula tunggakan emolumen adalah tidak berasas dan/atau logik dalam keadaan Pemohon sendiri telah tidak hadir bertugas tanpa cuti atau tanpa kebenaran terlebih dahulu atau tanpa sebab yang munasabah dan pada setiap masa material mengakui melakukan kesalahan tersebut;

Saya juga telah dinasihatkan oleh Peguam Persekutuan dan sesungguhnya menyatakan bahawa:-

…

Pemotongan emolumen pada tahun 2018 bukan merupakan hukuman tatatertib di bawah Peraturan 1993, sebaliknya merupakan tindakan administratif di bawah Perintah Am, Bab C, Peraturan. Ianya bukan lah suatu hukuman yang dikenakan di bawah Peraturan 1993.

Prinsip 'legitimate expectation' juga tidak terpakai dalam kes ini atas hakikat Pemohon pertama kali dipertuduhkan di bawah Peraturan 1993 melalui Surat Tindakan Tatatertib.”.

Guided by the exposition in Vickneswary’s case and based on the affidavit evidence, I find that the 1993 Regulations do not provide for the time frame within which a disciplinary action must be taken against an officer and that there was no unreasonable delay in the circumstances of this case. R2 has sufficiently explained the reasons for the time taken to commence disciplinary proceedings, which was contributed by the Applicant’s own conduct in being untraceable for approximately 2½ years. This was supported by R3 in its AIR (encl. 15).

Moreover, the Applicant did not raise the issue of delay in the Representation and he had admitted to the offences alleged against him. This tends to show that the issue of delay was an afterthought.

Even if there was delay, in light of the chronology of events in this case, it cannot be construed against the Respondents and does not amount to procedural unfairness.

As regards the alleged legitimate expectation of reinstatement after returning to duty on 13.11.2020, I agree with the Respondents’ submission that such expectation does not arise because the principle “ignorantia juris non excusat” applies whereby the Applicant should be familiar with the requirement to respond to the notice published in the newspaper as stipulated in Regulation 26(4) of the 1993 Regulations.

I was further satisfied that the Applicant had not shown how he was prejudiced by the duration of time taken by the Respondents to initiate the disciplinary proceedings against him.

On the issue of condonation, it must be pleaded and can be either in the active or passive form. The learned FC correctly submitted that neither was present in this case.

In so far as active condonation was concerned, throughout the material time, R3 had never forgiven the Applicant for his misconduct and there was nothing in writing to that effect. Instead, R3 had taken initial administrative steps to indicate that it did not condone nor approve of the Applicant’s misconduct by issuing a series of Show Cause Letters and a verbal warning and subsequently forfeited his emoluments for the days that he was absent without leave.

For the same reasons, a case of passive condonation was also not established. R2 had vigorously pursued the charges against the Applicant in accordance with the provisions of Part V of the 1993 Regulations which culminated in the Applicant’s dismissal.

There was simply not an iota of evidence to support the claim of active or passive condonation on the part of the Respondents.

In view of the above, the 3rd Ground was answered in the negative. 4th Ground: Whether the Respondents’ failure to consider the Applicant’s medical evidence and to convene an IC under Regulation 37(5) of the 1993 Regulations amounted to procedural unfairness

Regulation 37(5) of the 1993 Regulations stipulates that: “Procedure in disciplinary cases with a view to dismissal or reduction in rank

37.

…

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.”.

The Applicant highlighted that the Psychiatric Reports from DPMH HKL confirmed that the Applicant was suffering from Generalized Anxiety Disorder and Obsessive-Compulsive Disorder. These conditions explained the periods of his absence. However, the Respondents failed to properly consider this medical mitigation which amounted to a failure to take into account relevant considerations, and hence, constituting an Anisminic error.

Further, once the Applicant’s medical condition was raised, and in light of the certified Psychiatric Reports and medical certificates produced, the Respondents should have convened an IC to verify the Applicant’s health status or seek further clarification. The failure to do so amounted to procedural unfairness and a breach of Regulation 37(5) of the 1993 Regulations.

The Applicant relied on the case of Thirunavukasu Anggapan v Kerajaan Malaysia & Ors [2023] 2 MLRH 219 to support his contentions.

Apart from what the Applicant had stated in the Representation with regards to the Second Charge, he also said the following: “2. Terlebih dahulu saya mengucapkan terima kasih kerana telah memberi peluang kepada saya untuk membebaskan diri daripada diambil tindakan tatatertib seperti yang terkandung pada Peraturan 27(1), Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993.

Sehubungan itu, saya mengaku akan kesalahan yang telah saya lakukan seperti yang dinyatakan dalam surat pertuduhan ke atas saya dan berikut merupakan representasi serta alasan pembelaan diri saya mengikut pertuduhan: PERTUDUHAN PERTAMA Bagi pertuduhan ini saya lampirkan Laporan Ringkas Pakar dan laporan Perubatan daripada Hospital Kuala Lumpur, Kementerian Kesihatan Malaysia bagi rujukan serta tindakan daripada pihak tuan. i. Sepanjang saya menghilangkan diri sehingga tahun 2020, saya mencari jalan keluar akan permasalahan saya dan mengumpul kekuatan dalaman untuk hidup secara normal seperti orang lain. Untuk pengetahuan tuan, sepanjang tempoh itu saya hanya menyendiri tanpa keluarga serta orang yang mengenali saya dan sentiasa yakin pada keajaiban Allah swt, saya dapat mengharungi. ii. Sehubungan dengan tarikh ketidakhadiran bertugas seperti yang dinyatakan pada pertuduhan pertama, saya telah menjumpai Salinan dokumen serta membuat semakan yang mana terdapat hari-hari yang saya hadir bertugas (Salinan dokumen disertakan untuk rujukan tuan). …

Dokumen yang berkaitan saya senaraikan di bawah dan dilampirkan bersama surat ini bagi menyatakan kesungguhan saya untuk menyelesaikan permasalahan yang belaku sepanjang saya cuti tanpa kebenaran dan tidak dapat dikesan: i Salinan Laporan Ringkas Pakar dan Salinan Laporan Perubatan (Medical Report) Jabatan Psikiatri Dan Kesihatan Mental Hospital Kuala Lumpur Kementerian Kesihatan Malaysia ii Sijil-Sijil Sakit/ Slip Kehadiran Rawatan iii

Minat mencari dan menyampaikan ilmu memberi kekuatan dan semangat untuk kembali positif, sihat dan berkeinginan untuk terus bertugas sebagai Penolong Pegawal Latihan Vokasional Gred DV29 dalam bidang binaan bangunan. Sebagai penjawat awam juga, saya mengaku atas kesilapan yang belaku dan sekali lagi memohon maaf kepada sesiapa saja yang terkesan akan permasalahan saya ini secara langsung atau tidak. Diharap surat ini dan salinan dokumen yang disertakan dapat dijadikan alasan atau sebab yang munasabah bagi pertuduhan ke atas saya.

Adalah besar harapan saya sekiranya hukuman tatatertib ini diringankan. Diharap pihak tuan dapat mempertimbangkan sewajarnya hukuman yang akan diputuskan. Segala keperihatinan dan kerjasama daripada pihak tuan dalam menilai dan mempertimbangkan perkara ini amatlah dihargai.”.

In paragraph 10 of R2’s AIR (encl. 14), Shakib Bin Ahmad Shakir, the Director General of the Department of Manpower and Chairman of R2 affirmed that: “10. Perenggan 5.3 Afidavit Sokongan Pemohon adalah dirujuk dan diakui setakat Responden Ke- 2 telah hanya dibekalkan dengan sesalinan Laporan Perubatan Permohon bertarikh 3.7.2018 dan 13.1.2021 bersama dengan Surat Representasi yang dikemukakan dan ditandakan Ekshibit MAM-4 dan lain-lain pernyataan hendaklah dibuktikan oleh Pemohon. Saya selanjutnya menyatakan bahawa Laporan Perubatan Pemohon bertarikh 3.7.2018 dan 13.1.2021 tersebut tidak pada bila-bila masa menyatakan bahawa keadaan mental Pemohon menyebabkan Pemohon tidak boleh hadir bertugas ke pejabat. Saya juga menyatakan bahawa Pemohon tidak pernah mengemukakan Laporan Perubatan bertarikh 12.1.2021.”.

Based on the medical reports from DPMH HKL dated 3.7.2018 and 13.1.2021, it was revealed that the Applicant began psychiatric treatment for the first time only on 25.3.2017 and not since 2015.

The Applicant never adduced any evidence to show that he was suffering from mental illness since 2015. In fact, the Applicant had presented the said MC to justify his absence without leave in 2015.

The Applicant’s mental condition came to light when he was asked to clarify the submission of the said MC for the absence in 2015 as can be seen in the Applicant’s response dated 7.3.2018.

Hence, R2 was of the view that the Applicant’s inability to work during the material time was unfounded. Based on the Representation, R2 was satisfied that the Applicant had not exculpated himself of the First Charge and the Second Charge.

On the issue of the establishment of an IC, the decision to establish an IC under Regulation 35(7) of the 1993 Regulations was within the exclusive domain of R2 to decide. In Abd Razak Bin Atan v Dato’ Hj Ahmad Ragib Bin Hj Mohd Salleh (sued in his capacity as Assistant Chief Administrator to the Inspector General of Police (Disciplinary) & Ors [2010] 3 MLJ 753 at p 771, Low Hop Bing JCA in delivering the judgment of the Court of Appeal said: “[54] The necessity for further clarification from the plaintiff together with the need to appoint a committee of inquiry as well as the requirement of giving oral evidence by the plaintiff are within the domain of the disciplinary authority and not the court. The court certainly cannot substitute its own view for that of the disciplinary authority. The manner in which the decision was made by the disciplinary authority cannot be faulted. It is beyond reproach.”.

In Vickneswary’s case (supra, at p 10), Zaki Azmi PCA in speaking for the Federal Court held that: “[22] ... Should the disciplinary authority consider that the case against the officer requires further clarification then it may appoint a committee of inquiry. This is a decision of the disciplinary authority, not the officer or the court. At this enquiry the officer will be allowed and if the committee shall so determine shall be required to appear before it and exculpate himself. Again this is the decision of the disciplinary authority. …”.

Based on paragraph 29 of the AIR (encl. 14), R2 was of the opinion that the case against the Applicant did not require any further clarification and therefore, there was no necessity to establish an IC. R2’s opinion was not subject to review or scrutiny by the Court [see Tay Chai Huat (supra, at p 168)].

Notably, in the Representation, the Applicant did not raise anything concerning the medical reports and certificates as requiring further clarification. The Applicant clearly admitted that he had committed the offence as per the First Charge and the Second Charge.

As regards the case of Thirunavukasu Anggapan (supra), I accepted the FC’s submission that the facts in the present application are distinguishable because in that case –

there was a genuine case of mental health which was not taken into consideration by the Disciplinary Board/

substantial evidence of the applicant’s mental condition was presented;

the applicant had consistently indicated his mental condition and requested a transfer to the evening session due to the drowsiness caused by his prescribed medication;

there was a necessity to establish a Committee of Inquiry under Regulation 37(5) of the 1993 Regulations since the Disciplinary Board/ Disciplinary Appeal Board was not convinced by the material presented by the applicant; and

considering the applicant’s legitimate medical condition, the court found that the punishment imposed was disproportionate.

In the final analysis, the facts in the instant application were such that did not necessitate the establishment of an IC under Regulation 37(5) of the1993 Regulations to further investigate the mental condition of the Applicant. The inconsistencies in the evidence show that there was no legitimate case of mental illness to begin with.

The 4th Ground was therefore answered in the negative. 5th Ground: Whether the Respondents failed to give reasons in deciding to dismiss the Applicant

The Applicant’s complaint was that R1 and R2 rendered their decision without furnishing any reasons. Given that the decision resulted in the Applicant’s dismissal and directly affected his livelihood, the failure to provide reasons was said to constitute a breach of natural justice and amounts to procedural impropriety.

It was indisputable that there is no express provision in the 1993 Regulations which requires R1 and R2 to give reasons for the respective decision made by them.

In addressing the issue on the duty to give reasons, Nallini Pathmanathan FCJ in delivering the decision of the Federal Court in Datuk Bandar Kuala Lumpur v Perbadanan Pengurusan Trellises & Ors and other appeals [2023] 3 MLJ 829 remarked, among others, that –

at common law, there is no duty to give reasons and such obligation arises when it is provided for in the statute;

based on the case law on the subject, the general stance adopted was that, where there is no express statutory provision requiring the giving of reasons, there is no duty to do so;

however, in the context of the case before the court, the lack of an express statutory provision requiring a local authority to give reasons for its approval does not equate to a conclusion that there is absolutely no duty to give reasons at all. A failure to give any reason for the grant of a development order reduces transparency in the decision-making process; and

the duty to give reasons is determined on a case-by-case basis as there may be exceptional or special circumstances that requires the authority concerned to give reasons for its decision. In the case before the apex court, there were special circumstances because there was a departure form the development plan and the Green Belt policies.

Returning to the present application, R2 had fulfilled the requirement under Regulation 34(1) of the 1993 Regulations, which provides that: “Conditions for dismissal or reduction in rank

(1) Subject to subregulation (2), no officer shall be dismissed or reduced in rank in any disciplinary proceedings under this Part unless he has first been informed in writing of the grounds on which such action is proposed and he has been afforded reasonable opportunity of being heard.”, by informing the Applicant in writing of the grounds on which his dismissal or reduction in rank was proposed through the Show Cause Letter dated 20.5.2021.

Thereafter, in the 19.9.2022 Letter, R1 stated that there was no valid reason to alter R2’s decision.

In my view, the Applicant did not establish any special circumstances that would necessitate the provision of reasons by the Respondents, for example, how the Applicant’s right to livelihood could be considered as exceptional when compared to other public officers who were dismissed following disciplinary proceedings or how the Respondents had departed from the procedures stipulated in the 1993 Regulations in initiating and conducting the disciplinary proceedings against the Applicant.

Thus, in the absence of exceptional circumstances, there was no duty on the Respondents to give reasons and the Applicant’s contentions under the 5th Ground were unsustainable. 6th Ground: Whether the Respondents considered irrelevant matters and failed to take into account relevant considerations, and whether the decision to dismiss the Applicant was disproportionate

The Applicant asserted that R2 ignored the medical evidence, excessive delay, prior condonation and attendance record contradicting some dates as raised in the Representation and therefore, R2’s decision was tainted by illegality, irrationality and procedural impropriety.

The Applicant additionally submitted that the punishment of dismissal was irrational and disproportionate given his long service since 2007, medical issues, prior administrative handling and delay.

Firstly, this Court has not lost sight of the fact that the Impugned Decision in this application for judicial review was R1’s decision dated 19.9.2022 in dismissing the Applicant’s appeal against the determination by R2. Hence, it was incumbent on the Applicant to establish that R1’s decision was tainted with illegality, irrationality and/ or procedural impropriety.

Even if the 6th Ground was considered in the context of R1, R2 and R3, for the reasons as explicated above, I was not satisfied that the Applicant has discharged the burden of proving, on a balance of probabilities, that their decisions pertaining to the disciplinary proceedings against the Applicant were tainted with illegality, irrationality and/ or procedural impropriety or that they had considered irrelevant matters and failed to take into account relevant matters.

As regards the punishment of dismissal, R2 as the disciplinary authority was in the best position to judge the seriousness of the Applicant’s misconduct and this Court should not intervene with the punishment imposed by R2 and affirmed by R1.

In Mohamad Sukry Tamsuri v. ACP Ng Siew Hiang & Ors [2026] MLRHU 989, the applicant similarly argued that the punishment imposed against him was disproportionate and did not warrant the punishment of dismissal. However, I held that the second respondent as the disciplinary authority was the best judge of the seriousness of the applicant’s misconduct and the punishment to be imposed (see Ng Hock Cheng v Pengarah Am Penjara & Ors [1998] 1 MLJ 153).

In the premises, I was unable to agree with the Applicant’s submission to find that the punishment imposed on him was disproportionate to the offence and did not warrant the punishment of dismissal.

Premised on the aforesaid considerations, the Court was of the view that there were no merits to each of the Applicant’s ground of challenge. Accordingly, the application was dismissed with no order as to costs. DATED: 5.6.2026 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR (BKK1) Solicitors for the Applicant : Nur Shazwani Binti Shahdan Messrs. Hana, Shazwani & Co.