Mohd Fawwaz Jafni Bin Madzuki v Institut Penyelidikan dan Kemajuan Pertanian Malaysia (Mardi) (BA-25-7-01/2024)

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1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS PERMOHONAN SEMAKAN KEHAKIMAN NO: BA-25-7-01/2024 ANTARA MOHD FAWWAZ JAFNI BIN MADZUKI (NO K/P: 850423-10-5615) … PEMOHON DAN INSTITUT PENYELIDIKAN DAN KEMAJUAN PERTANIAN MALAYSIA ... RESPONDEN GROUNDS OF JUDGMENT (Enclosure 7)

Schedule

Jadual Kedua, Peraturan-Peraturan dan Tatatertib Badan-Badan Berkanun, Akta Badan-Badan Berkanun (Tatatertib dan Surcaj) 2000 [Akta 605] yang tertera seperti berikut: 23 “Ketidakhadiran untuk bertugas oleh seseorang pegawai tanpa cuti atau tanpa terlebih dahulu mendapat kebenaran atau tanpa sebab yang munasabah boleh menyebabkan dia dikenakan tindakan tatatertib” Perbuatan tuan itu boleh diertikan sebagai tidak bertanggungjawab dan ingkat perintah iaitu melanggar tatakelakuan di bawah Peraturan 3(2)(g) dan 3(2)(i), Bahagian II, Jadual Kedua, Peraturan-Peraturan Tatatertib yang sama yang tertera seperti berikut:- 3 (2) “Seseorang pegawai tidak boleh :- (g) tidak bertanggungjawab; dan (i) ingkar perintah atau berkelakuan dengan apa-apa cara yang boleh ditafsirkan dengan munasabah sebagai ingkar perintah” Jika tuan didapati bersalah ke atas pertuduhan ini, tuan boleh dihukum mengikut Peraturan 40, Bahagian VI, Jadual Kedua, Peraturan-Peraturan Tatatertib Badan-Badan Berkanun, Akta Badan-Badan Berkanun (Tatatertib dan Surcaj) 2000 [Akta 605]. PERTUDUHAN KEDUA: Bahawa tuan, Mohd Fawwaz Jafni Bin Madzuki (K.17009) Nombor Kad Pengenalan: 850423-10-5615, Pembantu Awam, Gred H11, Institut ini, bertugas di Pusat Pembangunan & Pengurusan Harta (AM), Ibu Pejabat MARDI, Serdang telah didapati sering kali lewat hadir ke pejabat dan tidak merakam waktu masuk atau keluar tanpa mendapatkan pengesahan daripada Pegawai Penyelia bagi tarikh-tarikh seperti berikut:- BULAN/TAHUN Kesalahan di bawah Pekeliling AM MARDI Bil 6 Tahun 2015 Tarikh Lewat Hadir Tarikh Tidak Rakam Waktu Masuk Tarikh Tidak Rakam Waktu Keluar Jumlah Kesalahan Februari 2020 3,4,5,6,7,10, 12,13,14,17, 18,19,20,25, 26 & 28 - 3 17 Mac 2020 3,4,5,6, 12,13 & 17 2 - 8 Oktober 2020 5,12 & 19 - - 3 November 2020 10,12,18 & 26 - 10 5 Disember 2020 7,8,15,17,22 & 23 - 7 & 16 8 Januari 2021 6,7,11,14 & 27 - 8 6 Februari 2021 2,5,10 & 15 - - 4 Mac 2021 2, 4, 5, 19, 22 & 26 23 17, 22 & 24 10 April 2021 7 & 26 19 9 & 20 5 Mei 2021 10, 25 & 28 - 6 4 Disember 2021 2,8,14,16,17, 20,21,22 & 27 - - 9 Januari 2022 3, 4, 6 & 7 - - 4 Mac 2022 7, 8 & 14 - - 3 April 2022 11, 12 & 21 18 & 20 12 & 21 7 JUMLAH 75 5 13 93 Kali Tuan dengan ini telah tidak mematuhi Pekeliling AM MARDI Bilangan 6 Tahun 2015: Peraturan Sistem Kad Perakam Waktu (SKPW) dan Sistem Perakam Waktu Elektronik (SPWE) MARDI. Perbuatan tuan itu boleh diertikan sebagai tidak bertanggungjawab dan ingkar perintah iaitu melanggar tatakelakuan di bawah Peraturan 3(2)(g) dan 3(2)(i), Bahagian II, Jadual kedua, Peraturan-Peraturan Tatatertib yang sama yang tertera seperti berikut: 23 “Ketidakhadiran untuk bertugas oleh seseorang pegawai tanpa cuti atau tanpa terlebih dahulu mendapat kebenaran atau tanpa sebab yang munasabah boleh menyebabkan dia dikenakan tindakan tatatertib” Perbuatan tuan itu boleh diertikan sebagai tidak bertanggungjawab dan ingkat perintah iaitu melanggar tatakelakuan di bawah Peraturan 3(2)(g) dan 3(2)(i), Bahagian II, Jadual Kedua, Peraturan-Peraturan Tatatertib yang sama yang tertera seperti berikut:- 3 (2) “Seseorang pegawai tidak boleh :- (g) tidak bertanggungjawab; dan (i) ingkar perintah atau berkelakuan dengan apa-apa cara yang boleh ditafsirkan dengan munasabah sebagai ingkar perintah” Jika tuan didapati bersalah ke atas pertuduhan ini, tuan boleh dihukum mengikut Peraturan 40, Bahagian VI, Jadual Kedua, Peraturan-Peraturan Tatatertib Badan-Badan Berkanun, Akta Badan-Badan Berkanun (Tatatertib dan Surcaj) 2000 [Akta 605]. 6. The Applicant submitted his written representation on 5.12.2022 explaining his circumstances. However, via a notice dated 23.3.2023, the DC found him guilty and imposed the maximum penalty of dismissal, effective immediately. 7. The Applicant appealed that Decision, highlighting a Medical Board Report from 24.6.2022 which confirmed he was in recovery and temporarily unfit for duty. He emphasized his commitment to treatment and his efforts to work despite his health. As an alternative to dismissal, he requested "Retirement on Medical Grounds" under the Statutory and Local Authorities Pensions Act 1980 (Act 239). His appeal was rejected by the Appeals Committee for Dismissal or Demotion of Support Staff (Appeals Committee) on 24.10.2023. 8. The Applicant contends that the Respondent acted unreasonably and irrationally by disregarding the Medical Board’s findings and failing to follow Service Circular No. 4 of 1998, which requires warnings and consultations before he was dismissed from service. Respondent’s narrative 9. The Respondent’s narrative is set out in the affidavits of a member of the Appeals Committee, the Director of the Integrity Unit (Director 1) and Director of the Property Development and Management Centre (Director 2) of the Respondent. 10. Their timeline began in December 2019 when the Director 2 reported that the Applicant for being absent for 42 days and late for 9 days. This led to a forfeiture of emoluments and a formal warning from the Integrity Unit regarding potential disciplinary action under Act 605. 11. Between 2020 and 2022, the Respondent initiated 2 rounds of counselling and guidance through its Human Resource Management Centre to address the Applicant’s interpersonal and psychological challenges. 12. Despite these interventions and a period of ‘hourly monitoring by his department and reduced workloads, the Respondent concluded that the Applicant showed no positive change, noting a pattern where he would merely clock in and out without remaining at his workplace. 13. A Medical Board was convened in early 2022 and they determined the Applicant suffered ‘major depressive disorder with anxious distress severe’ and was temporarily unfit for duty. A meeting was also held with his treating physician at the Department of Psychiatry and Mental Health, Hospital Serdang. The Respondent was informed that the Applicant was diagnosed with moderate anxiety with episodic symptoms. If no medical certificates were issued, it meant that the Applicant was fit to report for duty as usual. 14. The DC reviewed all this information and concluded that there was a prima facie case to initiate disciplinary action against the Applicant and issued the show cause letter wherein he was asked to submit a written representation which he did. 15. After considering, his written representation and feedback from Director 2, the DC decided to terminate his services. He appealed and the Appeals Committee conducted a thorough review before rejecting the appeal and upholding the Decision. 16. The Respondent denied the Applicant’s allegations and maintained that at all material times, they complied with the Regulations and Act 605. Principles of law 17. Judicial review is a public law remedy that allows the High Court to exercise its supervisory jurisdiction over the decisions of public bodies, including disciplinary boards of statutory bodies. Governed by O. 53 Rules of Court 2012 (ROC), the High Court’s supervisory role in dismissal cases is anchored on the principles traditionally categorised as illegality, irrationality and procedural impropriety (Council of Civil Service Unions v. Minister of the Civil Service [1985] AC 374 at 410; [1984] 3 All ER 935). 18. Procedural impropriety is often the primary battleground; it dictates that a disciplinary body must strictly adhere to statutory procedures, such as those enshrined in the Second Schedule of Act 605, while upholding the rules of natural justice. A failure to provide an employee with a fair hearing or a failure to follow the mandatory steps of a disciplinary circular constitutes a fatal flaw in the decision-making process. 19. A dismissal can be challenged on the grounds of irrationality, or Wednesbury unreasonableness. This applies when a decision is so illogical that no reasonable authority could have reached it. Closely linked to this is the principle of proportionality, where the court examines whether the punishment of dismissal is commensurate with the gravity of the misconduct. (see R. Rama Chandran v. The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145; [1997] 1 CLJ 147; [1996] 1 MLRA 725, Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan [1996] 1 MLJ 261; [1996] 2 CLJ 771). Breach of natural justice 20. The Applicant complains he was not afforded a right to be heard and therefore the Decision is flawed. He cites Article 135(2) Federal Constitution and Vijayarao Suparmaniam v. Suruhanjaya Perkhidmatan Awam Malaysia [2017] 12 MLJ 17 wherein Ramly Ali FCJ held at 33 - “The general rule of the right to be heard more popularly known by its Latin version of as ‘audi alteram partem’ (hear the other side), requires that a disciplinary decision be the person directly affected by given a fair opportunity both to state his case and to know and answer the case of the other side; otherwise the disciplinary decision cannot stand. Any decision reached in contravention of this rule will be void for being ultra vires art 135(2) of the Federal Constitution. 21. This Court was guided by the judgment in Kerajaan Malaysia & Ors v. Tay Chai Huat [2012] 3 MLJ 149; [2012] 3 CLJ 577. Mohd Ghazali FCJ held at 162 – “In Utra Badi this court held that the right to be heard given by art 135(2) of the Federal Constitution does not require that the member of the service facing the disciplinary charge be given an oral hearing and it could not be argued that the failure to give that person an oral hearing was a denial of justice. In Vickneswary, this court held as follows: (i) from the provisions of the general orders it is clear that it is never the intention of the legislators that the courts should step into the shoes of the disciplinary authority in deciding whether it was fair to the respondent, ie, the member of service facing the disciplinary charge to have granted him a right to make oral representations or whether he should be given such right although he did not ask for it; (ii) it is clear from the facts that the respondent was given an opportunity to be heard whereby he had given a lengthy written representation explaining in detail his innocence; and (iii) it is not the court, but the disciplinary authority which has to decide the question of whether the respondent had exculpated himself by his written representation. I dare say that the law is settled in cases of this genre. This can be gleaned from several decisions which were decided prior to Utra Badi and Vickneswary, see Hjh Halimatussaadiah bte Hj Kamaruddin v Public Services Commission, Malaysia & Anor [1994] 3 MLJ 61, Ghazi bin Mohd Sawi v Mohd Haniff bin Omar, Ketua Polis Negara, Malaysia & Anor [1994] 2 MLJ 114, Zainal bin Hashim v Government of Malaysia [1979] 2 MLJ 276 and Najar Singh v Government of Malaysia & Anor [1974] 1 MLJ 138. From the authorities referred to above I am of the view that the law is settled. Thus, an oral hearing may be given in instances where the disciplinary authority considers that the case against the officer requires further clarification and consequently appoint a Committee of Inquiry pursuant to general order 26(5) of the GO (Chapter D). If the disciplinary authority considers that no further clarification is required, I do not think that the officer concerned can insist or demand that a Committee of Inquiry be appointed.” 22. This Court finds that both Vijayarao (supra) and Tay Chai Huat (supra) clearly establish that the right to be heard is satisfied if the applicant is given a fair opportunity to state his case. That right does not carry with it an automatic right to an oral hearing. Therefore, the failure to accord an oral hearing without more cannot render the process unfair nor does it constitute a breach of natural justice. 23. Regulations 35 and 39, Part V, First Schedule Act 605 set out the procedure in disciplinary cases with a view to dismissal or reduction in rank. The regulations read - “35(1) If it is determined under regulation 33 that the disciplinary offence complained of against an officer is of a nature that warrants a punishment of dismissal or reduction in rank, the appropriate Disciplinary Committee to which the case is referred shall consider all the available information. (2) If it appears to the appropriate Disciplinary Committee that there exists a prima facie case against the officer, the appropriate Disciplinary Committee shall— (a) 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 (b) call upon the officer to make, within a period of twenty-one days from the date he receives the charge, a written representation containing the grounds upon which he relies to exculpate himself. (3) If, after considering the representation made pursuant to subregulation (1), the appropriate Disciplinary Committee 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 Committee may impose upon the officer any of the lesser punishments specified in regulation 40 as it deems appropriate. (4) If the officer does not make any representation within the period specified in paragraph (2)(b), or if the officer made such a representation but the representation does not exculpate himself to the satisfaction of the appropriate Disciplinary Committee, the Disciplinary Committee shall then proceed to consider and decide on the dismissal or reduction in rank of the officer. (5) If the appropriate Disciplinary Committee is of the opinion that the case against the officer requires further clarification, the Disciplinary Committee may establish an Investigation Committee for the purpose of obtaining such further clarification. … 39. If, after considering the officer’s representation and the report of the Investigation Committee, if any, the appropriate Disciplinary Committee— (a) finds the officer guilty of the disciplinary offence alleged to have been committed by him and that the officer should be dismissed or reduced in rank, the Disciplinary Committee shall impose the punishment of dismissal or reduction in rank, as it deems appropriate; (b) finds the officer guilty of the disciplinary offence alleged to have been committed by him but that, after taking into consideration the circumstances in which the disciplinary offence was committed and other mitigating factors, such offence does not warrant a punishment of dismissal or reduction in rank but warrants the imposition of a lesser punishment, the Disciplinary Committee shall impose upon the officer any one or more of the punishments other than dismissal or reduction in rank as specified in regulation 40 as it deems appropriate; or (c) finds the officer not guilty, the Disciplinary Committee shall acquit him.” 24. From the facts of this application, this Court is satisfied that the Applicant was afforded a reasonable opportunity of being heard through his written representation as prescribed by law. As such, the Applicant’s right to be heard was properly and adequately satisfied. 25. This Court finds that Applicant’s complaint on this issue misconceived and devoid of merit. Procedural impropriety 26. The Applicant complains that the Respondent committed procedural impropriety because they failed to consider all relevant facts and documentary evidence. In particular, he points to the Medical Board’s findings that he “tidak berupaya untuk melakukan kewajipan buat sementara waktu kerana masih belum mendapatkan rawatan maksima.” 27. The Applicant’s assertion is that he should be afforded leniency and his absenteeism excused on account of his mental health condition. 28. A perusal of the Respondent’s affidavits, clear show that this complaint is without any basis. This Court finds that the Respondent took extensive steps to address the Applicant’s health issues. This includes referring the Applicant for internal counselling services and assigning the Applicant to minimal work duties to accommodate his health. 29. After the Medical Board, they also consulted the Applicant’s attending physician who confirmed that the Applicant was fit to attend work unless he had been issued a medical certificate. The Respondent’s records show that no medical certificates were ever issued to justify the Applicant’s failure to attend work, his late arrivals and/or his repeated failure to record attendance during the specific dates referred to in the disciplinary charges. 30. This Court is unable to accept the Applicant’s contention that the was procedural impropriety. This Court finds that the Applicant’s prolonged and repeated absenteeism, coupled with his failure to justify those absences with proper documentation, provided sufficient grounds for the Decision. Unreasonable, irrational and disproportionate 31. The Applicant complains that the Decision is unreasonable, irrational and disproportionate on account of his health condition. The Respondent should have referred to the Medical Board and retired him for medical reasons. This is provided for in the ‘Garis Panduan untuk pegawai yang berprestasi rendah dan pegawai yang bermasalah’. 32. A perusal of the guidelines clearly shows that the option to medically retire the Applicant is one of the administrative actions that may be taken by the Head of Department. One of the requirements for early retirement on medical grounds is that the affliction suffered must be permanent (Service Circular Number 10 of 1995: Procedures for Retiring Officers on Health Grounds’). 33. On the facts of the present application, the Medical Board found that his inability to perform was temporary as he was still undergoing treatment. Likewise, the medical report prepared by Serdang Hospital states that as at 17.1.2022, the Applicant’s symptoms are well controlled with medications although he was still unable to focus at work. Both the Medical Board and the attending physician did not certify that the major depressive disorder the Applicant suffered was permanent. 34. This means that the Applicant is not eligible for early retirement on medical grounds. This Court is satisfied that the Respondent acted reasonably and rationally. The Respondent only took disciplinary action after the corrective and remedial measure failed to bring about a positive change on the Applicant’s part. 35. This Court was mindful of Article 135(2) Federal Constitution and the judgment in Tan Tek Seng (supra) when considering whether the punishment imposed on the Applicant was proportionate to his infraction. 36. In consideration of his health issues, the Applicant was given a lighter workload and counselling to help him perform his work. Despite being monitored closely, his absenteeism persisted. 37. In these circumstances, this Court finds that the Decision to terminate him is not disproportionate. 35. On the facts of this application, the Court finds that the dismissal was a fair and just punishment for the Applicant’s continued absence.