Mohammad Izzuddin Bin Zulkifly v Suruhanjaya Pasukan Polis (WA-25-390-12/2023)

1.

2.

KERAJAAN MALAYSIA … RESPONDENTS

This was an application for judicial review by the Applicant where he sought, among others, for –

an order of Certiorari to be issued to the Respondents to quash the decision made by the Police Force Commission (‘R1’) to dismiss the Applicant from the Royal Malaysian Police with effect from 8.6.2023 and to quash the decision of the Inspector General of Police (‘R2’) and/ or the agents or officers of the Government of Malaysia (‘R3’) which revoked the Applicant’s acting appointment as Deputy

a declaration or an order of Mandamus to be issued to the Respondents to direct that the Applicant be reinstated to the position of DSP (acting) without any loss of seniority, salary increment, pay, emoluments and other benefits.

After having considered the cause papers and the oral and written submissions of the parties, I had dismissed the Applicant’s application.

The following are my full grounds for the decision.

The Applicant joined the Royal Malaysia Police (‘PDRM’) on 1.9.2006 as a Probationary Inspector and he completed training at the Police Training Centre (PULAPOL) on 1.6.2007. He was subsequently confirmed in his appointment as Inspector on 1.9.2009.

The Applicant then served in Pahang at the Narcotics Criminal Investigation Division, Kuantan District Police Headquarters; Narcotics Criminal Investigation Department (‘JSJN’), Pahang Contingent Police Headquarters (‘IPK Pahang’); and Crime Prevention and Community Safety Division, Temerloh District Police Headquarters where he moved up in rank from Assistant Superintendent of Police (‘ASP’) to DSP.

On 8.8.2022, the Applicant was arrested by officers of the Bukit Aman Narcotics Criminal Investigation Department under the Dangerous Drugs (Special Preventive Measures) Act 1985 [Act 316] (‘DDSPMA 1985’). He filed a habeas corpus application at the Shah Alam High Court (‘SAHC’) on 12.8.2022 challenging the legality of his arrest and 60-days remand.

A Restriction Order (‘RO’) was issued against the Applicant on 29.9.2022 under sub-s 6(3) of the DDSPMA 1985 whereby he was placed under restriction in Mukim Kuala Kuantan, Pahang for a period of two years.

Subsequently, by a Suspension Order dated 12.10.2022 (‘1st SO’), which was received by the Applicant on 14.11.2022, he was suspended from duty.

On 10.11.2022, the SAHC allowed the Applicant’s application for a writ of habeas corpus and an order was made for his immediate release.

Further, the Applicant was reinstated to duty vide the letter dated 22.11.2022 issued by R2 as the Disciplinary Authority in accordance with Regulation 46 of the Public Officers (Conduct and Discipline) Regulations 1993 (Amendment 2002) (‘1993 Regulations’). He was also entitled to receive the emoluments which was withheld.

The Ministry of Home Affairs appealed to the Federal Court against the decision of the SAHC.

On 19.1.2023, the Federal Court allowed the appeal and set aside the Order made by the SAHC. On the same day, the Applicant was verbally informed by an officer from JSJN, IPK Pahang to report at the Kuantan Police Station as a restricted person.

The Applicant was suspended for a second time through a Suspension Order dated 10.2.2023 (‘2nd SO’), which he received on 24.2.2023 and identical in its terms to the 1st SO.

On 7.2.2023, the Applicant filed Judicial Review Application No. DA-25-5-02/2023 (‘JR No. 5’) at the Kota Bharu High Court (‘KBHC’), through Messrs. Azeezi Nordin & Co., challenging the legality of the RO. The Government raised a preliminary objection based on the doctrine of res judicata. The preliminary objection was dismissed by the KBHC on 31.7.2023 and leave to challenge the RO was allowed.

While JR No. 5 was pending, the Applicant was dismissed from service vide the letter dated 26.6.2023 (‘Dismissal Letter’), which was served on the Applicant on 13.9.2023, stating that he was dismissed with effect from 8.6.2023 pursuant to Regulation 33(2) of the 1993 Regulations.

The Applicant subsequently discovered that the Dismissal Letter described him as ASP rather than Acting DSP. Upon inquiry, he was informed that his acting appointment had been revoked.

Following receipt of the Dismissal Letter, the Applicant appointed Messrs. Maniam Nair & Co. to represent him.

The Applicant’s solicitors issued a representation letter dated 15.9.2023 to R1, urging the revocation or withdrawal of the decision to dismiss the Applicant on the ground that the legality of the RO, which was the basis of the dismissal, was sub judice, as it remained pending before the KBHC. By the letter dated 9.10.2023, R1 replied that it was functus officio and therefore, unable to review or rescind the decision.

The Applicant then filed the instant application wherein, apart from the reliefs as mentioned in paragraph 1 above, he also sought for a consequential order for inquiry to determine the arrears of salary, including salary increments, emoluments, allowances and other benefit which the Applicant should have received from the date of the last payment of salary and emoluments, around November 2022, or from the date of dismissal until full settlement.

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]

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).

Generally, the Applicant contended that –

the factual chronology demonstrates that the disciplinary action taken against the Applicant was premature, jurisdictionally defective, unlawful and tainted by procedural impropriety; and

the totality of the circumstances of the case reveal that the Applicant’s suspension and subsequent dismissal were unreasonable, disproportionate and contrary to the principles of natural justice.

Based on the Statement (encl. 3), the Applicant initially pleaded several sub-grounds under the broad grounds for judicial review of procedural impropriety, illegality, irrationality and proportionality. However, in the Applicant’s Written Submission, these were narrowed down to four main grounds as follows:

whether the disciplinary action and dismissal were premature, unlawful and in excess of jurisdiction, being founded exclusively on the RO, the validity of it was sub judice in JR No. 5 at the KBHC;

whether the Respondents misapplied Regulation 33(2) of the 1993 Regulations by using it to effect a summary dismissal without due diligence, and considering the pending JR No. 5, and in a manner that overrides constitutional protections and procedural safeguards under

whether the decision to impose the punishment of dismissal was so disproportionate and unreasonable (Wednesbury unreasonableness) that no reasonable authority could have imposed it, given the Applicant’s 16 years of exemplary and unblemished service record, which was ignored by the

whether the doctrine of functus officio applies to bar R1 from reviewing its decision, given that the dismissal was based on the RO which was not final and remains the subject of a live judicial challenge. Analysis and Findings 1st Issue: Whether the disciplinary action and dismissal were premature, unlawful and in excess of jurisdiction, being founded exclusively on the RO, the validity of it was sub judice in JR No. 5 at the KBHC

The Applicant submitted that JR No. 5 was filed on 7.2.2023, and leave was granted by the KBHC on 31.7.2023. Notwithstanding the pendency of that judicial challenge, the Respondents proceeded to dismiss the Applicant on 8.6.2023, thereby pre-empting the judgment by the KBHC on the very Order which formed the foundation of the disciplinary action.

It was further argued that the grant of leave for judicial review by the KBHC signifies that there are arguable and justiciable issues as to the legality of the RO. Consequently, the Respondents were duty bound to exercise caution and await the decision by the KBHC before proceeding with the disciplinary action predicated upon the RO. The premature dismissal infringed upon the principle of proportionality as the Respondents failed to consider whether it was appropriate to proceed with dismissal pending the outcome of JR No. 5.

The Respondents’ conduct was alleged to amount to a breach of the rule of law and the sub judice principle, which prohibit administrative or disciplinary bodies from acting upon matters pending judicial determination.

It was also contended that –

the Respondents’ reliance on Regulation 33(2) of the 1993 Regulations was misconceived and the said Regulation cannot be interpreted as conferring absolute discretion to dismiss an officer without adherence to constitutional safeguards under Article 135(2) of the Federal Constitution and the principles of natural justice and proportionality; and

the Respondents’ decision contravened Article 135(2) of the Federal Constitution, which guarantees that no public officer shall be dismissed without being afforded a fair hearing. A fair and reasonable process necessarily requires that an officer not be dismissed on the basis of a contested legal order that remains unresolved before a court of law.

Accordingly, the Respondents’ reliance on the RO had tainted the dismissal decision with illegality, irrationality, procedural impropriety and jurisdictional error. The decision, being based on a foundation whose validity is under judicial challenge, is void ab initio, unlawful and of no effect.

Regulation 33 of the 1993 Regulations reads as follows: “Consideration of Disciplinary Authority in cases of conviction and detention

33.

If, after considering the report, the records of service and the Head of Department's recommendation forwarded to it under subregulation 29(2), the appropriate Disciplinary Authority is of the opinion that –

the officer should be dismissed or reduced in rank, the Disciplinary Authority shall impose the punishment of dismissal or reduction in rank, as it deems appropriate;

the offence of which the officer was convicted does not warrant a punishment of dismissal or reduction in rank but warrants the imposition of a lesser punishment, the Disciplinary Authority shall impose upon the officer any one or more of the punishments other than dismissal or reduction in rank as specified in regulation 38 as it deems appropriate; or

no punishment should be imposed on the officer, the Disciplinary Authority shall acquit him.

If, after considering the report, the records of service and the Head of Department’s recommendation forwarded to it under subregulation 32(2), the appropriate Disciplinary Authority is of the opinion that –

the officer should be dismissed or reduced in rank, the Disciplinary Authority shall impose the punishment of dismissal or reduction in rank, as it deems appropriate;

the grounds on which the order was made against the officer do not warrant a punishment of dismissal or reduction in rank but warrant the imposition of a lesser punishment, the Disciplinary Authority shall impose upon the officer any one or more of the punishments other than dismissal or reduction in rank as specified in regulation 38 as it deems fit and proper; or

no punishment should be imposed on the officer, the Disciplinary Authority shall acquit him.

Where a punishment other than dismissal has been imposed on an officer or where the officer has been acquitted by the appropriate Disciplinary Authority, the appropriate Disciplinary Authority shall direct the officer to resume his duties.”.

Article 135(2) of the Federal Constitution provides that: “135. Restriction on dismissal and reduction in rank

…

No member of such a service as aforesaid shall be dismissed or reduced in rank without being given a reasonable opportunity of being heard: Provided that this clause shall not apply to the following cases:

where a member of such a service is dismissed or reduced in rank on the ground of conduct in respect of which a criminal charge has been proved against him; or

where the authority empowered to dismiss or reduce in rank a member of such a service is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to carry out the requirements of this Clause; or

where the Yang di-Pertuan Agong, or, in the case of a member of the public service of a State, the Ruler or Yang di-Pertua Negeri of that State, is satisfied that in the interests of the security of the Federation or any part thereof it is not expedient to carry out the requirements of this Clause; or

where there has been made against a member of such a service any order of detention, supervision, restricted residence, banishment or deportation, or where there has been imposed on such a member any form of restriction or supervision by bond or otherwise, under any law relating to the security of the Federation or any part thereof, prevention of crime, preventive detention, restricted residence, banishment, immigration, or protection of women and girls: Provided further that for the purpose of this Article, where the service of a member of such a service is terminated in the public interest under any law for the time being in force or under any regulation made by the Yang di-Pertuan Agong under Clause (2) of Article 132, such termination of service shall not constitute dismissal whether or not the decision to terminate the service is connected with the misconduct of or unsatisfactory performance of duty by such member in relation to his office or the consequences of the termination involved an element of punishment; and this proviso shall be deemed to have been an integral part of this Article as from Merdeka Day. …”

Upon scrutiny of the affidavit evidence and submissions of the parties, I was persuaded by the Respondents’ submission that R1 and R2 had fulfilled all requirements under the law, in particular the 1993 Regulations and that the pendency of JR No. 5 at the KBHC does not preclude the Respondents from initiating and determining the disciplinary action. My reasons were as follows.

R1 derives its powers under Articles 140(1) and 144(1) of the Federal Constitution to conduct the disciplinary action against the Applicant. The said Articles stipulate that: “Police Force Commission

(1) There shall be a Police Force Commission whose jurisdiction shall extend to all persons who are members of the police force and which, subject to the provisions of any existing law, shall be responsible for the appointment, confirmation, emplacement on the permanent or pensionable establishment, promotion, transfer and exercise of disciplinary control over members of the police force: Provided that Parliament may by law provide for the exercise of such disciplinary control over all or any of the members of the police force in such manner and by such authority as may be provided in that law, and in that event, if the authority is other than the Commission, the disciplinary control exercisable by such authority shall not be exercised by the Commission; and no provision of such law shall be invalid on the ground of inconsistency with any provision of this Part. …”. “Functions of Service Commissions

(1) Subject to the provisions of any existing law and to the provisions of this Constitution, it shall be the duty of a Commission to which this part applies to appoint, confirm, emplace on the permanent or pensionable establishment, promote, transfer and exercise disciplinary control over members of the service or services to which its jurisdiction extends. …”

R2 is empowered with the delegated powers via the instrument of delegation, namely, Surat Cara Perwakilan Fungsi-Fungsi, Kuasa-Kuasa, Tugas-Tugas dan Tanggungjawab-Tanggungjawab Tertentu [P.U.(B) 441/2000].

The disciplinary action against the Applicant was commenced under Regulations 32 and 33, Part IV read together with Regulation 45(1)(b), Part VIA of the 1993 Regulations. Regulation 33 is as re-produced above while Regulations 32 and 45 state the following: “Procedure where there is an order of detention, banishment, etc

32.

Where –

an order of detention other than an order of remand pending trial or for purposes of investigation;

an order of supervision, restricted residence, banishment or deportation; or

an order which imposes any form of restriction or supervision, whether with bond or otherwise, has been made against an officer under any law relating to the security of Malaysia or any part of Malaysia, the prevention of crime, preventive detention, restricted residence, banishment, immigration, or the protection of women and girls or of children, the officer’s Head of Department shall apply for a copy of the order from the appropriate authority.

Upon receipt of a copy of the order referred to in sub-regulation (1), the Head of Department shall forward it to the appropriate Disciplinary Authority having the jurisdiction to impose a punishment of dismissal or reduction in rank together with the officer’s records of service and the recommendation of the Head of Department that –

the officer should be dismissed or reduced in rank;

the officer should be punished with any punishment other than dismissal or reduction in rank;

the service of the officer should be terminated in the public interest; or

no punishment should be imposed, depending on the degree of disrepute which the officer has brought to the public service. …

(1) The appropriate Disciplinary Authority having the jurisdiction to impose a punishment of dismissal or reduction in rank may suspend an officer from the exercise of his duties if –

the officer has been convicted by any criminal court; or

an order as specified in regulation 32 has been made against the officer.

The period of suspension under this regulation shall commence from the date of conviction or the effective date of the order, as the case may be.

An officer who is suspended from the exercise of his duties –

shall not be allowed to receive any part of his emoluments which has not been paid during the period of his interdiction under regulation 44; and

shall not be entitled to receive any emolument throughout the period of his suspension.

The decision by the appropriate Disciplinary Authority to suspend an officer shall be notified to him in writing.”.

In my opinion, the requirements under Part IV of the 1993 Regulations were fulfilled because –

upon receiving a copy of the Applicant’s Detention Order dated 29.9.2022, the Applicant’s Head of Department, CP Dato’ Sri Ramli bin Mohamed Yusof (‘HoD’), forwarded the Detention Order together with his recommendation containing the Disciplinary Report and the Applicant’s Record of Service to R1 as per Regulation 32(2) of the 1993

the HoD recommended that the Applicant be imposed with the punishment of dismissal or reduction in rank upon considering the seriousness of the criminal offence and the degree of disrepute that it brought to PDRM. This was in accordance with Regulation 32(2) of the 1993 Regulations; and

upon considering the recommendation and accompanying documents as forwarded by the HoD, R1 was of the opinion that the offence committed was serious in nature and warranted an order of dismissal. The consideration was made pursuant to Regulation 33(2) of the 1993 Regulations.

Further, the requirements under Part VIA of the 1993 Regulations were similarly fulfilled as –

R2 is the appropriate Disciplinary Authority empowered with the delegated power under Item 15(b) of P.U.(B) 441/2000 to impose suspension under Regulation 45(1) of the 1993

the 1st SO and 2nd SO were issued by R2 following Regulation 45(1)(b) of the 1993 Regulations upon the issuance of the Detention Order.

R2 issued the termination of the Acting Appointment as DSP Directive on 5.5.2023 in accordance with his delegated powers under Item 15(a) of P.U.(B) 441/2000, which was communicated via the official internal system of e-Siar PDRM (No. 20/2023).

Regulations 32 and 33 of the 1993 Regulations are silent on whether the validity of the RO must first be fully exhausted on appeal before the Respondents can determine the disciplinary action and dismiss the Applicant.

There is nothing in Article 135(2)(d) of the Federal Constitution and Regulation 32(1)(c) of the 1993 Regulations which bars the Respondents from proceeding with the disciplinary action during the pendency of JR No. 5 in the KBHC. All that was required was “… where there has been made against a member of such a service any order of detention, supervision, restricted residence, banishment or deportation …” and “Where an order which imposes any form of restriction or supervision, whether with bond or otherwise, has been made against an officer under any law relating to the security of Malaysia …” (see Saiful Bahari Bin Yunus v Dato’ Jamil Bin Rakon (Setiausaha Suruhanjaya Pasukan Polis) & Ors [2022] MLJU 786 at paragraph 88).

The disciplinary action against the Applicant should be initiated once the Respondents were presented with the Detention Order (see Abd Razak Bin Atan v Dato’ Hj Ahmad Ragib Bin Hj Mohd Salleh (Disaman Dalam Kapasitinya Sebagai Penolong Ketua Urusetia Ketua Polis Negara (Tatatertib)) And Others [2009]

A departmental disciplinary action is concerned not with criminal offence but with misconduct (see Tay Chai Huat (supra) at p 65).

In the present case, the disciplinary action is a separate and distinct action from the criminal proceeding before the KBHC. The Respondents were only concerned with the gravity of the misconduct i.e. the Applicant’s alleged involvement in drug related activities and the extent of disrepute it brings to PDRM, and not on the criminality of the involvement in drug-related activities itself.

In the circumstances, the disciplinary action against the Applicant was not premature, void ab initio or unlawful and was not caught by the sub judice rule.

Therefore, the 1st Issue was answered in the negative. 2nd Issue: Whether the Respondents misapplied Regulation 33(2) of the 1993 Regulations by using it to effect a summary dismissal without due diligence, and considering the pending JR No. 5, and in a manner that overrides constitutional protections and procedural safeguards under Regulations 35 - 37 of the 1993 Regulations

The Applicant submitted that the Disciplinary Authority –

misconstrued Regulation 33(2) of the 1993 Regulations as granting absolute power to dismiss without inquiry whereas the provision must be construed consistently with Article 5(1) which provides that “No person shall be deprived of his life or personal liberty save in accordance with law.”, Article 8(1) which declares that “All persons are equal before the law and entitled to the equal protection of the law.” and

relied on an incomplete and inaccurate report that omitted the judicial challenge to the RO;

misused Regulation 33(2) to bypass the procedural rights under Regulations 35 to 37 of the 1993 Regulations;

failed to ensure due diligence and to obtain a valid “Penyataan Fakta” or supporting grounds; and

adopted an unverified and prejudicial recommendation from the HoD.

Apart from Regulations 32 and 33 which were quoted previously, Regulation 35 to 37 of the 1993 Regulations provide as follows: “Chairman of Disciplinary Authority to determine nature of breach of discipline

35.

Where an officer is alleged to have committed a disciplinary offence –

the Chairman of the Disciplinary Authority appropriate to that officer; or

if there is more than one tier of Disciplinary Authority in respect of such officer, the Chairman of the Disciplinary Authority having the jurisdiction to impose a punishment other than dismissal or reduction in rank, shall, before commencing any disciplinary proceedings in respect of the officer, consider and determine whether the disciplinary offence complained of is of a nature which warrants a punishment of dismissal or reduction in rank or a punishment lesser than dismissal or reduction in rank.

If the Chairman of the Disciplinary Authority referred to in paragraph (1)(a) or (b) determines that the disciplinary offence complained of is of a nature which warrants a punishment of dismissal or reduction in rank, he shall refer the case to the Disciplinary Authority which has the power to impose such punishment. Procedure in disciplinary cases not with a view to dismissal or reduction in rank

36.

If it is determined under subregulation 35(2) that the disciplinary offence complained of against an officer is of a nature that warrants a punishment lesser than dismissal or reduction in rank, the appropriate Chairman of Disciplinary Authority referred to in paragraph 35(1)(a) or (b), on being satisfied that there exists a disciplinary offence, shall inform the officer by notice in accordance with regulation 52 of the facts of the disciplinary offence alleged to have been committed by him and shall give to the officer an opportunity to make a written representation within a period of twenty one days from the date he is informed of the facts.

If the appropriate Disciplinary Authority is of the opinion that the officer’s representation requires further clarification, the Disciplinary Authority may require the officer to furnish further clarification within such period as the Disciplinary Authority may specify.

If after considering the officer's representation and, if further clarification is furnished, his further clarification, the appropriate Disciplinary Authority –

finds the officer guilty of the disciplinary offence alleged to have been committed by him, the Disciplinary Authority shall impose upon the officer any one or more of the punishments other than dismissal or reduction in rank as specified in regulation 38 as it deems appropriate; or

finds the officer not guilty, the Disciplinary Authority shall acquit him. Procedure in disciplinary cases with a view to dismissal or reduction in rank

37.

If it is determined under subregulation 35(2) that the disciplinary offence complained of against an officer is of a nature that warrants a punishment of dismissal or reduction in rank, the Chairman of the appropriate Disciplinary Authority to which the case is referred shall consider all the available information.

If it appears to the Chairman of the appropriate Disciplinary Authority that there exists a prima facie case against the officer, the Chairman of the appropriate Disciplinary Authority shall –

direct that a charge containing the facts of the disciplinary offence alleged to have been committed by the officer and the grounds on which it is proposed to dismiss the officer or reduce his rank be sent to the officer; and

require the officer to make, within a period of twenty-one days from the date he is informed by notice in accordance with regulation 52 of the charge, a written representation containing the grounds upon which he relies to exculpate himself.

If, after considering the representation made pursuant to subregulation

(1), the appropriate Disciplinary Authority is of the opinion that the disciplinary offence committed by the officer does not warrant a punishment of dismissal or reduction in rank, the appropriate Disciplinary Authority may impose upon the officer any of the lesser punishments specified in regulation 38 as it deems appropriate.

If the officer does not make any representation within the period specified in paragraph (2)(b), or if the officer makes such a representation but the representation does not exculpate himself to the satisfaction of the appropriate Disciplinary Authority, the Disciplinary Authority shall then proceed to consider and decide on the dismissal or reduction in rank of the officer.

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.”.

Firstly, the learned Federal Counsel (‘FC’) submitted for the Respondents that the Applicant did not plead the 2nd Issue as one of the grounds for the application in the Statement and AIS.

Ms. Ebrina retorted for the Applicant that the 2nd Issue was pleaded in paragraphs 4(a) to (d) to the Statement.

I have scrutinised paragraphs 4(a) to (d) to the Statement and in my considered view, the 2nd Issue as presented in the Applicant’s Written Submission was indeed not pleaded in the Statement and AIS. Instead, it was first raised in paragraph 5 of the Applicant’s Affidavit In Reply (‘AIR’; encl. 12).

It is trite that the Applicant cannot raise any new grounds which were not pleaded in the Statement filed pursuant to O. 53, r. 3(2) of the RC 2012 (see V Paul Raj Chelladurai v Jabatan Telekom (M) Bhd & Ors [2000] 3 MLJ 652, Sunway University College v Mahkamah Perusahaan Malaysia & Anor [2019] 7 CLJ 55, Lembaga Tatatertib Kumpulan Sokongan (No 1) Jabatan Perlindungan Hidupan Liar dan Taman Negara & Ors v Mariani bt Ramli [2021] 5 MLJ 857 and Minister of Finance & Ors v Natsteel Holdings Pte Ltd [2026] 1 MLJ 699). Consequently, the Applicant is barred from pursuing the 2nd Issue.

Secondly, even if I am mistaken on the issue of pleadings and the 2nd Issue is considered, I agreed with the Applicant’s submission that the discretion lies with the Disciplinary Authority as to which provision of the 1993 Regulations that it thinks appropriate to invoke against the Applicant and that, if the Disciplinary Authority had waited until JR No. 5 was finally determined until the appellate level before commencing disciplinary proceedings against the Applicant, the Applicant would then raise issues of delay and condonation. 3rd Issue: Whether the decision to impose the punishment of dismissal was so disproportionate and unreasonable (Wednesbury unreasonableness) that no reasonable authority could have imposed it, given the Applicant’s 16 years of exemplary and unblemished service record, which was ignored by the Disciplinary Authority

The Applicant contended that the decision to dismiss the Applicant was manifestly unreasonable and arbitrary and that the Disciplinary Authority acted mechanically, imposing the ultimate penalty of dismissal without due consideration of mitigating factors, namely the Applicant’s –

16 years of continuous and exemplary public service;

consistently outstanding performance evaluations;

multiple Excellent Service Awards and Certificates of

absence of any prior disciplinary record.

The Applicant highlighted Regulation 33 of the 1993 Regulations which refers to Regulation 38 and provides a range of alternative punishments including reprimand, warning, fine, forfeiture of emoluments and reduction in salary or rank. Dismissal was thus not mandatory and the Disciplinary Authority retains the discretion to impose a lesser, or even no, punishment depending on the circumstances of each case.

It was strenuously argued that the failure to exercise the said discretion renders the decision disproportionate, irrational and contrary to the purpose and spirit of the 1993 Regulations. The Disciplinary Authority acted as if dismissal was automatic, thereby abdicating its duty to exercise judgment and proportionality as required by law. The Disciplinary Authority’s omission to acknowledge the Applicant's exemplary service record constitutes a clear neglect of relevant considerations and no reasonable authority, properly directing itself in law and fact, would have imposed the punishment of dismissal on an officer with such an unblemished record and multiple commendations. The decision therefore falls squarely within Wednesbury unreasonableness.

Further, the punishment imposed was said to be wholly disproportionate to the alleged misconduct.

It was my finding that the mitigating factors as set out by the Applicant formed part of the Applicant’s Record of Service and had been considered by R1 before the punishment of dismissal was imposed against the Applicant.

There was no evidence to support the Applicant’s contention that R1 had acted mechanically or arbitrarily, when all relevant documents as required under Regulations 32, 33 and/ or 45 of the 1993 Regulations were placed before R1 for consideration with the ultimate decision of dismissing the Applicant.

Applying the legal principle in the judgment of the Federal Court in Ng Hock Cheng v Pengarah Am Penjara & Ors [1998] 1 MLJ 153, R1, being the appropriate Disciplinary Authority, was in the best position to judge the seriousness of the Applicant’s misconduct. It was not for this Court to assess on whether dismissal or a lesser penalty was appropriate. This Court should not substitute its own view as to what is the appropriate penalty in respect of the Applicant’s misconduct in place of R1’s or the Respondents’ view.

The learned FC also drew the Court’s attention to the decision by the Federal Court in Pengerusi Lembaga Tatatertib Polis Diraja Malaysia, Bukit Aman & 2 Ors v Mohd Azuan Aniffa (Civil Appeal No. 01(f)-57-11/2015(W) that Regulation 33 of the 1993 Regulations provides that the Disciplinary Authority has the power to decide on the appropriate punishment as provided for in Regulation 38 and that: “22. The same is true with regard to the dismissal letter. We are of the view that the error in quoting reg. 33(1) instead of reg. 33(2) of the 1993 Regulations did not render the dismissal void and of no effect. The intention of the Disciplinary Authority was to dismiss the Respondent because of the detention order. This is clearly reflected in the dismissal letter which clearly stated that it was a “PEMBERITAHUAN HUKUMAN TATATERTIB ATAS KES PERINTAH TAHANAN”. In any event, both reg. 33(1) and reg. 33(2) of 1993 Regulations are of similar effect. Since both regulations did not provide for the right to be heard, the end result would be the same.”.

On condonation, the Applicant referred to his affidavit which shows that a “Perintah Ambil Semula Bekerja” dated 22.11.2022 (‘Reinstatement Order’) was subsequently issued by R2 and this was said to constitute clear evidence of condonation that the Respondents had, by reinstating the Applicant, condoned any alleged misconduct.

The FC explained that condonation in the context of employment is an act by the employer to excuse or forgive the employee for the wrongful act committed by the employee. Condonation can be in an –

active form i.e. by the act of telling the person that he has been forgiven for the wrongful act done; or

passive form i.e. by not taking any action.

In my view, the Applicant’s submission was misconceived as –

R2 issued the Reinstatement Order pursuant to Item 15(b) of P.U.(B) 441/2000 read with Regulation 45(1) of the 1993 Regulations so as to comply with the decision by the SAHC on 10.11.2022 that the Applicant’s arrest and remand under the DDSPMA 1985 was invalid. Following the said decision, the Applicant no longer came within the definition of having been issued with an order which “imposes any form of restriction” under Regulation 32(1)(c) of the 1993 Regulations and thus, this rendered the 1st SO to be ineffective;

upon receiving the information that the Applicant’s writ of habeas corpus was set aside by the Federal Court on 19.1.2023, R2 then issued the 2nd SO;

there is nothing in Regulation 45(1) of the 1993 Regulations that impedes R2 from issuing the 1st SO and 2nd SO and the

the 1st SO and 2nd SO were not issued as a result of the determination of the disciplinary action but these were ancillary to the final determination of the disciplinary proceedings which resulted in the dismissal of the Applicant. It was not to be conflated with the punishment contemplated under Regulation 38 of the 1993 Regulations.

In the final analysis, there was no condonation in an active form as the Respondents had never stated anywhere in their letter, order or directive that the Applicant had been forgiven for the misconduct. Neither was there any passive condonation as the Respondents did not remain silent throughout the material time. The Respondents had in fact initiated and pursued the disciplinary action against the Applicant until the end.

The 3rd Issue was therefore answered in the negative. 4th Issue: Whether the doctrine of functus officio applies to bar R1 from reviewing its decision, given that the dismissal was based on the RO which was not final and remains the subject of a live judicial challenge

The Court similarly agrees with the learned FC’s submission that the 4th Issue was yet another unpleaded ground in the Statement and AIS. It was again first raised only in paragraph 6 of the Applicant’s AIR (encl. 12).

Even if the Court was to consider the 4th Issue, the Applicant submitted that the doctrine of functus officio was not applicable in this case because the decision to dismiss the Applicant was not final as it was dependent upon the RO, the validity of which was pending for determination by the KBHC. The Respondents retained both the inherent power and the constitutional duty to review their decision to ensure compliance with the principles of fairness, legality and good administration.

The Applicant additionally argued that, by refusing to reconsider or suspend the dismissal pending the outcome of JR No. 5, and by invoking the doctrine of functus officio to shield an unlawful act, the Respondents had acted ultra vires, in bad faith and contrary to Articles 5(1), 8(1) and 135(2) of the Federal Constitution.

In view of my findings under the 1st Issue, it follows that the decision to dismiss the Applicant was indeed a final decision. Hence, R1 was functus officio and was not in a position to review or reconsider the decision.

Premised on the aforesaid considerations, it was my finding and conclusion that the Applicant failed to establish all of his grounds of application for judicial review. Accordingly, the application was dismissed with no order as to costs. DATED: 6.3.2026 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR (BKK1) Solicitors for the Applicant: Ebrina Binti Zubir Messrs. Maniam Nair & Co.