Mohd Sobri Bin Che Hassan …Perayu v Pihak Berkuasa Tatatertib (P-02(A)-1784-10/2015)

1 DALAM MAHKAMAH RAYUAN DI MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO. P-02(A)-1784-10/2015 ANTARA MOHD SOBRI BIN CHE HASSAN …PERAYU DAN

1. PIHAK BERKUASA TATATERTIB MAJLIS PERBANDARAN SEBERANG PERAI

2. MAJLIS PERBANDARAN SEBERANG PERAI …RESPONDEN-RESPONDEN [Dalam perkara mengenai Mahkamah Tinggi Malaya Di Pulau Pinang Permohonan untuk Semakan Kehakiman No.25-21-02/2014 Dalam Perkara Mengenai Keputusan Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai yang disampaikan melalui surat bertarikh 02.12.2013 Dan Dalam Perkara Peraturan-Peraturan Pegawai Awam Majlis Perbandaran Seberang Perai (Kelakuan dan Tatatertib) ANTARA MOHD SOBRI BIN CHE HASSAN …PERAYU 2 DAN

1. PIHAK BERKUASA TATATERTIB MAJLIS PERBANDARAN SEBERANG PERAI

2. MAJLIS PERBANDARAN SEBERANG PERAI …RESPONDEN-RESPONDEN] CORAM: HAMID SULTAN ABU BACKER, JCA PRASAD SANDOSHAM ABRAHAM, JCA ASMABI BINTI MOHAMAD, JCA (Asmabi Binti Mohamad JCA, delivering Judgment of the Court) JUDGMENT OF THE COURT INTRODUCTION [1] This is an appeal by the Appellant (the Applicant in the High Court) against of the decision of the High Court dated 30th September 2015 that dismissed the Appellant’s Judicial Review Application (JR Application) with costs of RM4,000.00 to be paid to the Respondents. [2] We heard this appeal on 8th September 2016. After perusing the Records of Appeal, the written submissions filed by the respective learned Counsels and upon hearing learned Counsels, we adjourned the matter for our consideration and decision. Before we adjourned the 3 same, we ordered both learned Counsels to further submit to us on three main issues:

Pursuant to Section 20 (1) (b) of the Specific Relief Act 1950, an employee who has been wrongfully dismissed cannot seek specific performance of his contract of employment. This is consistent with the common law position that a contract of employment is a contract dependent on the volition of the parties. As such, it cannot, in absence of special circumstances be specifically enforced either by a declaration that the contract still subsists or that the dismissal is invalid or void. THE APPEAL [21] Before us, whilst adopting the written submissions filed in court, the learned Counsel for the Applicant focused on the three main issues resolved by the learned JC for our determination. OUR DECISION The law [22] We were mindful of the limited role of the appellate court in relation to findings of facts made by the court of first instance. 21 [23] In the course of that, we had sought guidance from the very often-quoted case of Lee Ing Chin @ Lee Teck Seng v Gan Yook Chin [2003] 2 MLJ 97 where the Court of Appeal held as follows: “an appellate court will not, generally speaking, intervene unless the trial court is shown to be plainly wrong in arriving at its decision. But appellate interference will take place in cases where there has been no or insufficient judicial appreciation of the evidence.” [24] Reference was also made to the decision of the Federal Court in Gan Yook Chin v Lee Ing Chin @ Lee Teck Seng [2004] 4 CLJ 309 where the Federal Court held that the test of “insufficient judicial appreciation of evidence” adopted by the Court of Appeal was in relation to the process of determining whether or not the trial court had arrived at its decision or findings correctly on the basis of the relevant law and the established evidence. [25] We were also mindful of our role in dealing with the appeal at hand which originated by way of a judicial review application. On the proper approach the Court should adopt in dealing with the appeal, both learned Counsels for the Appellant and the Respondents had addressed this issue extensively in the learned Counsels’ written as well as oral submissions. We do not propose to deal with the law pertaining to the scope of judicial review at great length as the law is trite. We were guided by a plethora of cases which ruled that judicial review is not an appeal from the decision but a review of the manner in which the decision was made and that the High Court in hearing the judicial review is not entitled 22 to consider whether the decision itself, on the merits of the facts, was reasonable and fair. Suffice for the court to refer to the recent Federal Court case of Ketua Pengarah Hasil Dalam Negeri v Alcatel-Lucent Malaysia Sdn Bhd & Anor [2017] 2 CLJ 1, where his Lordship Suriyadi Halim Omar FCJ had stated as follows: “[69] A judicial review is a court proceeding where a challenge is made on the decision of the relevant authority or entity (in this case the appellant) ie, by challenging the lawfulness of the decision-making process. This is trite law. Generally, the court dealing with the judicial review application in a supervisory capacity is not to delve into the merits of the case. In other words, the evidence is not reassessed. The court is merely to quash the decision of the relevant authority, if need be, and not to substitute with what it thinks is the correct decision. We are not here to usurp the powers of the designated authority.” [26] Notwithstanding the above, we were also aware that the law on judicial review had developed so as to give the power to the court hearing a judicial review matter to scrutinize such decision not only for process, but also for substance to determine the reasonableness of the decision. Therefore, the conventional concept that judicial review is concerned only with the review in the manner a decision is made is no longer the correct approach to be adopted by the Court in dealing with judicial review cases. (see R.Ramachandran v The Industrial Court of M alaysia & Anor [1997] 1 MLJ 145 ; Titular Roman Catholic Archbishop of Kuala Lumpur v Menteri Dalam Negeri & Ors [2014] 8 CLJ 629; Datuk Justine Jinggut v Pendaftar Pertubuhan [2012] 3 MLJ 212 ; Ranjit 23 Kaur S. Gopal Singh v Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629). [27] These principles were reiterated in the recent Federal Court case of Ketua Pengarah Hasil Dalam Negeri v Alcatel-Lucent (supra) above in the following terms: [71] However, the Federal Court in the landmark decision of R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147; [1997] 1 MLJ 145 held that the decision of an inferior tribunal may be reviewed on the grounds of "illegality", "irrationality" and possibly "proportionality", which not only permits the courts to scrutinise the decision-making process but also the decision itself. In short, it allows the courts to delve into the merits of the matter. [72] The approach of illegality and irrationality was recognised and applied by Malaysian Trade Union Congress & Ors v. Menteri Tenaga, Air dan Komunikasi & Anor [2014] 2 CLJ 525; [2014] 3 MLJ 145. This court in succinct terms said: On the facts of this case, we find MTUC had failed to show that the Minister's decision was illegal, irrational and flawed on the grounds of procedural impropriety. [73] It is now clear, and here to stay, that the decision of an inferior tribunal may also be reviewed on the grounds of illegality and irrationality. The distinction between a review application and an appeal thus appears to no longer exist (see also Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629). 24 [28] Guided by the above established principles, we had therefore carefully examined the documents that were placed before us in the form of the Records of Appeal to ascertain if the learned JC had arrived at his decision correctly on the basis of the relevant law and evidence before him. [29] We observed that the learned JC had dealt with the facts and the law very extensively, contrary to what was stated by learned Counsel for the Applicant that the learned Judge had merely focused on three (3) main issues. This is reflected in the learned Judge’s Grounds of Judgment, the gist of which had been set out in paragraphs 19 to 20 above. [30] Before us, learned Counsel for the Applicant had informed us that she would be focusing on the three (3) major issues as stated above for our consideration. Issue 1 : Whether the failure on the part of the 1st Respondent to appoint a Committee of Investigation to investigate the charge had resulted in the decision making process to be tainted with procedural impropriety? [31] The Applicant contended that despite requests having been made by him as well as his HOD for a Committee of Investigation to be appointed to investigate the charge against him, the 1st Respondent had failed and / or refused to adhere to the said requests. Due to the failure on the part of the 1st Respondent to accede to these requests, the process 25 leading to his dismissal was tainted with procedural impropriety and / or there was breach of natural justice. [32] We noted that the MPSP Disciplinary Regulations were adopted from the Public Service (Discipline and Conduct) Regulations 1993 with modifications to suit the requirements of the 2nd Respondent. We have perused Part IV of the MPSP Disciplinary Regulations and found that in terms of substance and procedures, the provisions are pari materia to the 1993 Regulations. Hence we are of the view that decided cases touching the provisions of 1993 Regulations are equally applicable and / or are relevant in interpreting the MPSP Disciplinary Regulations. We are not short of authorities on the topic of “the right to be heard” and / or “a reasonable opportunity of being heard” as envisaged by the FC. We noted that the language of Article 132 (5) of the FC had been adopted in the proviso to section 16 (4) of the LGA which states as follows: “The Commissioner of the City of Kuala Lumpur in the case of the Federal Territory, or the Mayor or President or his representative who shall be the Councillor, the Secretary and one other Councillor in the case of local authorities may appoint such persons to the offices shown on the list so approved and may reduce in rank or dismiss such persons from office and may appoint others in their stead: Provided that the reduction in rank or dismissal from office of any Head of Department or his Deputy shall not take effect until such reduction in rank or dismissal has been confirmed by the State Authority: 26 Provided further that no officer or employee shall be reduced in rank or dismissed without being given a reasonable opportunity of being heard.” [33] In gist the right to a fair hearing and / or a reasonable opportunity of being heard that is guaranteed to the public servant is also accorded to the officers and employees of the 2nd Respondent. There is a statutory recognition given to the officers and / employees of the local authority (Majlis Perbandaran Seberang Perai (MPSP) or the 2nd Respondent) that no officers of the 2nd Respondent shall be reduced in rank or dismissed without being given a reasonable opportunity of being heard. As the provisions of the relevant law under discussion are similar we are of the view that cases which interpreted the provisions touching the public officer will also be useful to guide us in resolving the issues before us. [34] As we have highlighted in the preceding paragraphs, the procedures involving disciplinary proceedings with a view to dismissal and reduction in rank in the case of officers and employees of the 2 nd Respondent are somewhat similar to that of the 1993 Regulations as the 1993 Regulations were adopted by the 2nd Respondent with modifications to suit its requirements. Hence, the cases which dealt with the 1993 Regulations are relevant for purposes of interpreting the MPSP Disciplinary Regulations. In the case of the 1993 Regulations our courts have consistently held that so long as the Disciplinary Authority has assiduously followed the procedures prescribed in the 1993 Regulations, the requirements of a reasonable opportunity of being heard and or procedural fairness have been satisfied. The courts have also held that 27 it is sufficient for the officer facing disciplinary proceeding to be given the opportunity to make written representations to the disciplinary authority to answer to the charge proffered against him. Fair hearing does not mean the officer facing disciplinary proceedings must be heard orally either in person or by his advocate. The oral hearing is only relevant if the disciplinary committee is of the opinion the case involving the officer facing disciplinary proceedings requires clarification. This principle had been stated in the case of Najar Singh v. Government of Malaysia [1976] 1 LNS 81 (Najar Singh) where the Court held that so long as the public officer had been given the opportunity to make a written representation in answer to the charge against him, that would suffice to satisfy the test that he had been accorded a reasonable opportunity of being heard envisaged by Article 135 (2) of the FC. We are of the view that we can be guided by these cases as similar provisions of the MPSP Disciplinary Regulations were being discussed (see Najar Singh v. Government of Malaysia & Anor [1976] 1 LNS 81) ; Ghazi Mohd Sawi v Mohd Hanif Bin Omar, Ketua Polis Negara Malaysia [1994] 2 MLJ 114 ; Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utra Badi a/l K Perumal [2001] MLJ 417 ; Public Services Commission Malaysia & Anor v Vickneswary a/p RM Santhivelu (Substituting M Sentivelu a/l R Marimuthu, deceased) [2008] 6 MLJ 1 ; Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3 MLJ 149 ). [35] We found that except for the matter we propose to discuss under Issue 2, the 1st Respondent had assiduously complied with the procedures outlined under Part IV of the MPSP Disciplinary Regulations. 28 We were of the view that the 1st Respondent had given the Applicant a reasonable opportunity of being heard by according the Applicant the right to make a written representation. Drawing the analogy from the cases applicable to the public officers, we were of the view that the Applicant had been accorded a reasonable opportunity of being heard. As such the Applicant could not complain that he had been denied the right to be heard as entrenched under Section 16 (4) of the LGA. [36] Turning now to the allegation of the Applicant that the disciplinary proceedings were tainted with procedural impropriety as the 1st Respondent had failed to appoint the Committee of Investigation to investigate the charge against him. We noted that the contents of Regulation 29 (4) is word for word similar to Regulation 37 (5) of 1993 Regulations. The old provision in General Order 25 (6) of the General Order that was applicable to public officer had similar provisions. There are ample authorities on point which had delved with the said specific provisions and we are guided by these authorities. [37] It is trite that the appointment of the Committee of Investigation is at the discretion of the Disciplinary Authority and the officer could not demand for the same to be appointed and the Court ought not to interfere with the discretion of the Disciplinary Authority. [38] Reference is made to the majority decision of the Federal Court in Kerajaan Malaysia & Ors v Tay Chai Huat [supra] where it was decided as follows: 29 “[27] 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 Hajjah Halimatussaadiah binti Haji Kamaruddin v. Public Services Commission, Malaysia & Anor [1994] 3 CLJ 532, Ghazi bin Mohd Sawi v. Mohd Haniff bin Omar, Ketua Polis Negara, Malaysia & Anor [1994] 2 CLJ 333, Zainal Hashim v. Government of Malaysia [1979] 1 LNS 132 and Najar Singh v. Government of Malaysia & Anor [1974] 1 LNS 101. [28] 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 GO 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.” [39] The Court also rejected the earlier decision of the Federal Court in the case of Yusof Sudin v Suruhanjaya Perkhidmatan Polis & Anor [2012] 1 CLJ 448, where it was decided as follows: “[54] This court create precedents. The use of precedent is an indispensable foundation on which to decide what is the law and how it should be applied in individual cases. Utra Badi and Vickeswary are decisions that settled the law in cases of this genre with finality. I would think that this court would have need to hesitate long before distinguishing Utra Badi and Vickneswary on inadequate grounds or on a hypothetical issue raised by the appellants in appeals before this court such as whether there are exceptions to the ratio decidendi 30 formulated in both authorities. Such hypothetical issues raised in cases of this genre can have disruptive and seemingly unfair consequences and extremely capricious results. It creates uncertainty in the law and would seriously hinder administration of the General Orders by the government departments resulting in administrative confusion. For the aforesaid reasons adumbrated, I am unable to follow the majority decision in Yusof Sudin.” [40] Hence, guided by the above authorities, we agree with the learned JC, it is for the 1st Respondent to decide whether a Committee of Investigation ought to be appointed to investigate the charge and the Applicant could not demand for the same. This approach is also in tandem with Regulation 37 (5) of 1993 Regulations which provides as follows: “(5) If the appropriate Disciplinary Authority is of the opinion that the case against the officer requires further clarification, the Disciplinary Authority may establish an Investigation Committee for the purpose of obtaining such further clarification.” [41] The words “if the Disciplinary Authority is of the opinion” in the above-mentioned Regulation showed that the discretion is upon the Disciplinary Authority to decide whether a Committee of Investigation ought to be appointed or otherwise and the Court ought not to interfere with that discretion. Regulations 29 (4) of the MPSP Disciplinary Regulations were couched in similar language. We were of the view, cases applicable to Regulation 37 (5) of the 1993 Regulations would likewise be applicable to the case at hand. In view of the above, we were 31 constrained to hold that the point taken up by the Applicant that he was denied the right to be heard as the 1st Respondent had failed to constitute a Committee of Investigation to inquire into the charge against him has no merits and ought to be rejected by this Court. Issue 2 : Whether the decision-making process was tainted with biasness as the Respondents had highlighted the Applicant’s previous conviction in the Working Paper that was submitted to the Disciplinary Secretariat one day before the deliberation of the Disciplinary Committee, without giving the Applicant the opportunity to rebut the same? [42] The Applicant contended the proceedings that led to his dismissal was tainted with procedural impropriety as the 1st Respondent had considered a report it received from the Disciplinary Secretariat which was detrimental to the Applicant, without giving the Applicant the opportunity to explain or controvert the same (see page 449 to 552 of Appeal Records Jilid 2/(3)). The crucial portion of the detrimental report was the information pertaining to his previous misconduct where he was given a caution / warning with annual increment being deferred to twelve months for an offence for being late to work without any valid explanation. (see paragraph 6.9 at page 551 of the Appeal Record Jilid 2/(3)). [43] We have examined the process undertaken by the 1st Respondent which resulted in the dismissal of the Applicant and found that there is merit in the Applicant’s argument. The 1st Respondent had proceeded to impose the punishment of dismissal on the Applicant without giving the 32 Applicant the opportunity to explain and / or contradict the detrimental portion of the Report. We are of the view that this in itself constituted a breach of the rule of natural justice and or procedural unfairness/ impropriety. [44] We were guided by the principles enunciated in the in often-quoted cases of Surinder Singh Kanda v The Government of the Federation of Malaya [1962] 1 MLJ page 169 and Shamsiah bte Ahmad Sham v Public Services Commissions, Malaysia & Anor [1990] 3 MLJ 364. It is not disputed that the Working Paper which contained the material which was detrimental to the Applicant was given to the 1st Respondent one day before the decision to dismiss the Applicant was deliberated on, without giving the opportunity to the Applicant to explain or controvert the same. It is also not disputed that this information would be prejudicial to the Applicant. [45] In Surinder Singh Kanda v The Government of the Federation of Malaya [supra] (Surender Singh Kanda), a disciplinary proceeding was commenced against the Appellant, an Inspector of Police in the Royal Federation of Malaya Police leading to his dismissal from the said Service. In the course of the proceedings, a Report of the Board of Inquiry which contained severe condemnation of the Appellant was sent to the adjudicating officer before he sat to inquire into the charge. The adjudicating officer read the contents and had full knowledge of the contents of the Report. However, the Appellant never had it until the fourth day of the hearing. The Report contained detailed evidence of the witnesses as well as the inquiries made by the Board which were 33 detrimental to the Appellant. The Appellant raised the issue that he was dismissed without being given a reasonable opportunity of being heard by the Board, in that, he was not asked to correct or contradict the detrimental information contained in the Report. The Privy Council had the opportunity to elaborate on the clause, “a reasonable opportunity of being heard” contained in Article 135 (2) of the FC as follows: “If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence and what statements have been made affecting him : and then he must be given a fair opportunity to correct or contradict them. This appears in all cases from the celebrated judgment of Lord Loreburn, L.C in Board of Education v. Rice (³) down to the decisions of their Lordships’ Board in Ceylon University v. Fernando (4). It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back or the other. The Court will not enquire whether the evidence or information did work to his prejudice. Sufficient that they might do so. The Court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe that he has been fairly treated if the other side has had access to the judge without his knowing. Instances which are cited to their Lordships were Re Gregson (5), Rex v. Bodmin Justices (6) and Goold v. Evans (7), to which might be added Rex v. Architect’s Registration Tribunal (8) and many others.” [46] The facts in the case of Shamsiah bte Ahmad Sham v Public Services Commissions, Malaysia & Anor [supra] (Shamsiah) were 34 quite close to the case at hand. In Shamsiah, a book-binder in the Government Printing Department was dismissed by the Public Service Commission (PSC) after she was found guilty of negligence and dereliction of duty. She had challenged her dismissal by the PSC on the ground that the PSC had taken into consideration extraneous matters, namely, the Appellant’s record of past conducts which were entered in her record of service and produced by the Director General of the Government Printer’s Department to the PSC, without giving her the opportunity to explain, contradict or rebut the same. The Court was of the view that there was implicit acknowledgement on the part of the PSC that it had the information of the Appellant’s several misconducts as well as the punishments imposed on her. The Record of Service which was submitted to the Public Service Commission contained the information pertaining to the misconducts and the punishment which had been imposed on her comprising of 4 times being late to report for duty and 3 times for taking longer time to complete the tasks allocated to her for which she was punished with a warning, a fine and a withholding of salary respectively. The Court noted that in the show cause letter issued to her at paragraph 2, contained the following detrimental words: “ 2. Apart from that, it has been observed that several disciplinary actions have been taken against you by the Board of Discipline of your department on account of similar defaults as well as other defaults. However, they had no effect on you” (see page 366 E left column). 35 [47] The Court in Shamsiah relied on the Supreme Court case of S. Nanjundeswar v State of Mysore AIR 1960 SC 159 which referred to the Supreme Court case of (S) AIR 1957 SC 882 which ruled that: “the principle of natural justice require that no materials should be relied upon against the person charged without his being given an opportunity of explaining them.” [48] Apart from the above case, the Court had also referred to the case of Ramachandra Gopalrao v. Deputy Inspector of Police AIR 1957 Madh where the officer concerned was never informed of the fact that his record of past service and complaints would be considered in deciding the appropriate punishment to be imposed on him, in the event, he was unable to exculpate himself from the charge proffered against him. The Court agreed that the competent authorities were entitled to refer to previous conducts or complaint before deciding on the fate of the officer, but not until the officer was given the opportunity to take a proper defence to the proposed action to be taken against him. [49] In Gopalrao v. State Government Madhya Pradesh AIR 1954 Nag 90 (L), The Court went on to say: “If the civil servant is not apprised of the record of service, nor is he informed that it will be taken into account in order to decide the question of punishment, he cannot be deemed to have been given a reasonable opportunity to show cause against the proposed action. Normally, the question of punishment is linked up with the gravity of 36 the charge, and the penalty that is inflicted is proportionate to the guilt.” [50] Having considered the above quoted cases, the Supreme Court was of the view before any decision affecting the right of the appellant is made, the PSC must ensure that the appellant is apprised of the record of her past service and also the fact that it would be taken into consideration in imposing punishment. Failing which she cannot be deemed to have been given a reasonable opportunity to show cause against the proposed action. The Supreme Court was of the view that there was implicit acknowledgement on the part of the PSC that it had the information of the appellant’s several misconducts as well as the punishments imposed on her. The Court noted that in the show cause letter issued to her contained the following words which were prejudicial to the appellant: “ 2. Apart from that, it has been observed that several disciplinary actions have been taken against you by the Board of Discipline of your department on account of similar defaults as well as other defaults. However, they had no effect on you” (see page 366 E left column). [51] The Supreme Court was of the view that the above-quoted paragraph reflected the state of mind of the PSC and according to the Court this in itself constituted an intrinsic evidence, that the PSC had taken into account to dismiss the Appellant from the service of the Government, albeit, in good faith. 37 [52] Turning now to the case at hand, it is not disputed that the Applicant’s previous misconduct was within the knowledge of the 1 st Respondent and from the record before us, the 1st Respondent did not provide such information to the Applicant. Neither was the Applicant informed that such information may be used against him in meting out the punishment. [53] Based on the above we were of the view that the process undertaken by the 1st Respondent had infringed the rule of natural justice and / or was tainted with procedural impropriety. Hence, it is our finding that the learned JC had failed to properly evaluate the evidence before him and / or appreciate the relevant laws applicable to the factual matrix of this case in making his ruling against the Applicant on this point. Issue 3: Whether a relief in the form of Specific Performance is available to the Applicant [54] The learned JC ruled that, the Applicant did not fall within the category of officers defined under Article 132 of the FC and this was supported by the Federal Court case of Mohd Ahmad v Yang di Pertua Majlis Daerah Jempol, Negeri Sembilan & Anor [supra] which ruled that employees of the local council are not holders of public office. Hence, they are not entitled to the protection under Article 135 (2) of the FC. [55] The learned JC further held that, the Applicant was employed based on a contract of service. In terms of discipline he was subject to the terms and condition of his employment and the MPSP Disciplinary 38 Regulations. Whatever rights that had been accorded to the Applicant must be examined within the context of the contract of service, the MPSP Disciplinary Regulations and any other Circulars, Guidelines or Orders expressly incorporated in the Applicant’s contract of service. [56] The Applicant in this case did not pray for a relief in the form of specific performance. What was sought amongst others, was an order to quash the decision of the 1st Respondent to dismiss him from the employment of the 2nd Respondent. The Respondents argued that the relief sought by the Applicant was in the form of a specific performance as the Applicant had sought for the decision to be quashed and for him to be reinstated to the post he held prior to his dismissal. [57] We have carefully considered the arguments of the respective learned Counsels under this issue. Guided by the cases cited such as Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol, Negeri Sembilan [1997] 3 CLJ 135, Perbadanan Perwira Harta Malaysia & Anor v Mohd Baharin Hj Abu [2010] 6 CLJ 1, the Respondents argued that the Court will not order the specific performance of a contract of service entered into between a master and servant or grant declaratory relief which has the effect of granting specific performance on a claim of wrongful dismissal. Employees of local authorities, like in the case of the Applicant, who was employed purely on contractual basis are not holders of public offices as they are not classified under any of the categories stipulated under Article 132 of the FC. The claim for reinstatement under section 20 of the Industrial Relations Act 1967 and claim by public officers under Article 132 of the FC Order are not available to the officers of the 39 2nd Respondent. At most the officer of the local authorities, like the Applicant, is only entitled to damages provided if he can prove that he was wrongfully dismissed due to breach of the terms and conditions of his contract of service. [58] The principle illustrated in Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol, Negeri Sembilan [supra], was reiterated in the case of Perbadanan Perwira Harta Malaysia & Anor v Mohd Baharin Hj Abu [2010] 6 CLJ 1 where the CoA held that to suggest that such a relief is applicable to the officer of the local authority, there must be some form of statute of similar effect to support the claim. Otherwise a relief in the form of a specific performance or a declaration that the dismissal and / or termination is null and void and that he be reinstated could not be ordered by the court. This principle is further supported by section 20 of the Specific Relief Act 1950. The learned JC had stated that section 20 of the Specific Relief Act 1950 is consistent with the common law position that a contract of employment is a contract dependent on the volition of the parties, it cannot, in the absence of special circumstances, be specifically enforced either by declaration that the contract still subsists or that the dismissal is invalid or void. [59] The Applicant, on the other hand argued that the learned JC had ignored the fact that the case before His Lordship was a judicial review application, and the prayers sought amongst others was to quash the decision of the 1st Respondent in dismissing the Applicant from the services of the 2nd Respondent for procedural impropriety and not a case where specific performance was sought. It was further argued that the 40 reliance on the two cases, Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol, Negeri Sembilan [supra] and Perbadanan Perwira Harta Malaysia & Anor v Mohd Baharin Hj Abu [2010] 6 CLJ 1 was misplaced. In Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol, Negeri Sembilan [supra], the Applicant was seeking for a declaration that he was still a market supervisor, and entitled to all salary and benefits and other relief such as an enquiry to be conducted to determine the amount of salary, damages and cost. In the case at hand, the Applicant was merely seeking for an order of Certiorari to quash the decision of the 1st Respondent. As such the learned JC had gone on a frolic of his own by adopting the two cases cited above blindly without examining the facts and the law involved. [60] From the Judgment of the learned JC, we found that the learned JC was more persuaded by the argument of the Respondents that the relief in the form of specific performance and / or the like effect could not be ordered. The learned JC relied on the two exceptions enunciated in the case of Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol, Negeri Sembilan (Supra), in that, firstly, cases involving industrial relations where an employee was claiming for reinstatement on ground of dismissal without just cause or excuse or under section 20 of the Industrial Relation Act 1967 or secondly in cases involving a public officer as set out under Article 135 (2) of the FC. The learned JC, was being guided by the above two cases where the Federal Court and the Court of Appeal respectively had ruled that as a matter of principle the Court will not order specific performance unless the case falls under the two exceptions stated above. The learned JC further ruled that as the 41 employees of the 2nd Respondent, being an employee of a local authority he is employed purely on a contractual basis and he is not a public officer envisaged by Article 132 of the FC. At most he could only claim damages if he could establish that his dismissal was in breach of the contract of service. [61] We are of the view that the learned JC has erred in adopting the above-mentioned cases without fully appreciating the law and the procedures involved in these cases. The learned JC had failed to consider, in the case at hand there is a specific provision in the LGA which provides the guarantee of a reasonable opportunity of being heard to be accorded to the Applicant facing disciplinary proceedings with a view to reduction in rank and / or dismissal. The guarantee is further entrenched by way of a legislation in the form of MPSP Disciplinary Regulations which provide the procedures to be complied with in the event the 1st Respondent proposes to take disciplinary action against the Applicant with a view to dismissal or reduction in rank. The statutory requirements stipulated in the LGA and the procedures outlined in the MPSP Disciplinary Regulations were not available to the officers and / or employees in the two cases relied by the Respondent and further endorsed by the learned JC. Hence these cases ought to be distinguished. [62] By codifying the provision for a reasonable opportunity to be given to the Applicant for cases involving reduction in rank and / or dismissal, something equivalent to Article 135 (2) of the FC and legislating of the MPSP Disciplinary Regulations, the Respondent had brought themselves 42 into the realm of public law domain. Hence, there is a special guarantee given to the officers and / or employees of the 2nd Respondent. The relationship is no longer a plain master and servant relationship as envisaged in the two cases cited by the Respondents and relied by the learned JC. [63] The 1st Respondent is not entitled to rely only on the terms and conditions of contract of service, ignoring the clear statutory requirements and protection entrenched in the LGA and the MPSP Disciplinary Regulations. In this case, the Applicant’s employment was supported by statute thereby making it subject to the requirement of natural justice, the non-observance of which will allow the court to scrutinise the decision not only for process but also for substance. We refer to the case of Malloch v. Aberdeen Corporation [1971] referred to in Fadzil b. Mohammad Noor v. Universiti Teknologi Malaysia [1981] CLJ 85; [1981] CLJ (Rep) 53. The relevant passage in Malloch v. Aberdeen Corporation [supra] Lord Wilberforce said: “One may accept that if there are relationships in which all requirements of the observance of rules of natural justice are excluded (and I do not wish to assume that this is inevitably so), this must be confined to what have been called “pure master and servant cases”, which I take to mean cases in which there is no element of public employment or service, no support by statute, nothing in the nature of an office or status which is capable of protection. If any of these elements exist, then in my opinion, whatever the terminology used, and even though in some inter parte aspects the relationship may be called that of master and servant, there may be essential 43 procedural requirements to be observed, the failure to observe them may result in a dismissal being declared void.” [64] In the case involving the Applicant, the relationship is not merely a master servant relationship but the employment was supported by the LGA and the MPSP Disciplinary Regulations. Hence, the protection accorded to the officer of a local authority is special, because in an ordinary contract of employment or personal service, the employee need not necessarily be given the opportunity of being heard before a decision is made to reduce him in rank or to dismiss him from the employment. This relationship has changed from a pure master and servant relationship to a relationship which attract public law remedy. Like the public officers, the Applicant herein enjoys certain protection by the law through section 16 (4) of the LGA and the MPSP Disciplinary Regulations. The protection given to the Applicant is special as in the normal contract of service and / or employment or personal service, the employee need not be given a reasonable opportunity of being heard in cases of reduction in rank or dismissal. [65] We were of the view that the case at hand raised public law issues as it is a decision and action taken by the 1st Respondent in pursuance of the provision of an act of Parliament, the LGA that is being impugned. As such a decision taken by the 1st Respondent with regard to the Applicant as an officer of the 2nd Respondent in his duties is one which has implications for the public as a whole and in consequence of this that the public law is concerned with the decision-making process. The legal sources of the powers that are being impugned are in the public domain. 44 As such to institute the proceedings by ordinary summons, though seemingly appearing to be simple in procedure, will deprive the public authority in this case, the 2nd Respondent and in the circumstances of the case at hand, the protection of the law that it is entitled to by the process available under Order 53. [66] We would like to refer to the judgment of Lord Woolf LJ in the case of Mclaren v the Home Office [1990] 1 ICR 824 where the cause of action raised issues of private law and not public law. The private law issues were pertaining to the breach of the “Collective Agreements” entered into between parties. However, the Law Lord made a distinction between contractual rights and disciplinary matters, which are matters of public law to be decided by an application for judicial review. At page 16 of the judgment Woolf LJ states the law: “(2) there can however be situations where an employee of a public body can seek judicial review and obtain a remedy which would be available to an employee in the private sector. This will arise where there exists some disciplinary or other body established under the prerogative or by statute to which the employer or employee is entitled or required to refer disputes affecting their relationship. The procedure of judicial review can then be appropriate because it has always been part of the role of the court in public law proceedings to supervise inferior tribunals and the court in reviewing disciplinary proceedings is performing a similar role. As long as the ‘tribunal’ or other body has a sufficient public law element, which it almost invariably will have if the employer is the crown, and it is not domestic or wholly informal, its proceedings and determinations can be appropriate subject for judicial review.” 45 [67] In this appeal, the issues raised in the pleadings are substantively public law issues. The Applicant were seeking to nullify his dismissal by the 1st Respondent. In dismissing the Applicant, the 1st Respondent had acted under the MPSP Disciplinary Regulations, a federal law. The grounds raised by the Applicant are public law issues, namely a breach of natural justice, failure to comply with section 16 (4) of the LGA and failure to comply with the requirements of the MPSP Disciplinary Regulations. Further, in England itself, the House of Lords in Maclaren v Home Office [supra] held that issues pertaining to disciplinary matters must be determined by judicial review, as “it has always been part of the role of the court in public law proceedings to supervise inferior tribunals and the court in reviewing disciplinary proceedings is performing a similar role.” [68] In R v Berkshire Health Authority ex parte Walsh [1985] 1 QB 152 Sir John Donalson MR, delivering one of the three judgments of the court declared: “[25] But if there is a special statutory provision bearing directly upon the right of a public authority to dismiss the plaintiff then this injects the element of public law to attract remedies under administrative law. This is elaborated by Sir John Donaldson MR in the case of (R v Berks Authority, ex parte Walsh) where he said: “In all three case there was a special statutory provision bearing directly upon the right of a public authority to dismiss the plaintiff. In Vine v National Dock Labour Board [1957] AC 488 the employment was under the statutory dock labour scheme and the 46 issue concerned the statutory power to dismiss given by that scheme. In Ridge v Baldwin [1964] AC 40 the power to dismissal was conferred by statute: s 191 of the Municipal Corporations Act 1882 (45 & 46 Vict c50). In Malloch v Aberdeen Corporation [1971] 1 WLR 1578 again it was statutory : s 3 of the Public Schools (Scotland) Teachers Act 1882 (45 & 46 Vict c18) Lord Wilberforce said, at page 1595-1596, it is the existence of these statutory provisions which injects the element of public law necessary in this context to attract remedies of administrative law…. ………………………………………………………………………… [28] And this is what the High Court found: In this case, however, it is my opinion that in making a disciplinary award of dismissal, the Home Office (to use the comprehensive term to include the department and the Secretary of State so distinguished by the respondent itself in this case) was performing the duties imposed upon it as part of the statutory terms under which it exercises its power, I conclude therefore that this Court in the exercise of its supervisory jurisdiction can come to the aid of the applicant in this case and I am glad that it can. [29] The principle was subsequently reiterated by Lord Woolf in Mclaren v The Home Office [1990] ITLR 338 where he declared: There can however be situations where an employee of a public body can seek judicial review and obtain a remedy which would not be available to an employee in the private sector. This will arise where there exists some disciplinary or other body established under the 47 prerogative or by statute to which the employer or thew employee is entitled or required to refer dispute affecting their relationship.” [69] The Federal Court in Ahmad Jefri bin Mohd Johari @ Md Johari v Pengarah Kebudayaan & Kesenian Johor & Others [2010] 3 MLJ 145 at page 161 held: “Thus, the decision to dismiss the appellant was made under a statutory law by a body who acted within the scope of such statutory power. Though the dismissal involves the dismissal of an employee by an employer, much like a master dismissing his servant, which is private law matter, the fact that there are statutory conditions and restrictions imposed by the Regulations on the conduct and dismissal of the appellant underpins the public law element in this case. This is not a case of a public authority being delegated with authority to hire and fire much like what has occurred in R n East Berkshire Health Authority, ex parte Walsh and Wendal Swann v Attorney General of the Turks and Caicos Islands. Here, a special statutory provision bearing directly upon the right of a public authority to dismiss the appellant. This injects the element of public law necessary in this context to attract the remedies of administrative law making this case amenable to judicial review.” [70] Based on the above authorities, it is our humble view that the learned JC was plainly wrong when he decided that His Lordship was bound by the principles enunciated in Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol, Negeri Sembilan [supra] & Perbadanan Perwira Harta Malaysia & Anor v Mohd Baharin Hj Abu [supra]. As 48 such we were of the view that there was lack of judicial appreciation of the facts and the law apparent in the case before His Lordship. [71] We have perused the appeal record and the written submissions of the respective parties, we agree with the learned JC on all the issues decided by the learned JC but for Issue 2 and Issue 3 discussed herein. Under Issue 2 and Issue 3, we found that the decision of the 1st Respondent was predicated on unsupported evidence and / or law. As illustrated above, from the outset the decision-making process was tainted with the elements stated by the Applicant in his Order 53 (3) Statement, namely, illegality, irrationality and procedural impropriety. [72] We found that the learned Judge had relied on grounds proffered by the Respondents in arriving at his decision to affirm the 1st Respondent’s decision without making his own analysis and evaluation of the facts surrounding the appeal and / or without appreciating the relevant law applicable to the factual matrix of this case. [73] Having examined the appeal record and perused the written submissions and heard the oral arguments, we were constrained to hold that the learned Judge failed to judicially appreciate the evidence and / or the law presented before him so as to render his decision plainly wrong on Issue 2 and Issue 3, and upon curial scrutiny merit our appellate intervention. [74] Based on the facts that we had alluded herein, we were constrained to rule that Issue 2 and Issue 3 must be answered in favour of the 49 Applicant. We unanimously allow this appeal with costs. The decision of the High Court is hereby set aside. We grant the application for judicial review in terms of prayers (1), (4) and (5) as prayed for by the Applicant with costs of RM20,000.00 subject to payment of Allocateur. Deposit is refunded. [75] We therefore order accordingly. Dated: 12th October 2017. sgd (ASMABI BINTI MOHAMAD) Judge Court of Appeal, Malaysia 50 Parties:

1. Messrs Vijaya Navaratnam Advocate & Solicitor For and on Behalf of the Appellant Suite 3.03 Sri Weld 3A Weld Quay 10300 Penang [Ref: S1/15/L/VN] …Mr. Vijaya Navaratnam

2. Messrs Presgrave & Matthews Advocate & Solicitors For and on Behalf of the Respondents Standard Chartered Bank Chambers No. 2 Lebuh Pantai 10300 Penang [Ref: KLAC/MM/MSS/20150967] …Ms. Karin Lim Mr. Murgan Maniam