RM500,000.00 Legal fees and disbursements incurred up till date (Proceedings in the High Court, Court of Appeal, Leave Application at the Federal Court and Appeal at the Federal Court) and costs in assessment proceedings to be as per legal fees and disbursements incurred and/ or payable in respect of assessment proceedings. E. APPLICANT’S SUBMISSION [12] The Federal Court did not in anywhere of the Grounds of Judgment restrain or limit the assessment of damages of the Applicant from 3.12.2013 to 21.10.2019 and modified the assessment proceedings be heard by the High Court in view of the protracted litigation proceedings. The Federal Court only render the Applicant in the employment of the 2nd Respondent from the date he was unlawfully dismissed on 28th November 2013 up to the date of delivery of the judgement. [13] The Applicant is entitled as of right to the damages for the period from 28th November 2013 till 21st October 2019 and it should not be considered as compensation. As to this the Applicant should be awarded as of right the sum RM397,090.70 and the damages of RM1,617.892.55 for the period of 22nd October 2019 to 15th December 2035. [14] The Federal Court did not deprive the Applicant from continuing in service based on his past misconduct as alleged by the Respondents but held that an effective reinstatement is not warranted due to the background facts of this case. [15] As to the Respondents' contention that since an effective reinstatement is not warranted, the Applicant was not entitled to be placed in a status quo position until he retires at the age of 60, the Applicant submit that such contention is baseless. In view of the effective reinstatement is not available due to the surrounding facts and circumstances, the Applicant should be compensated for this. [16] Due to the unlawful dismissal, the Applicant's rights to pension and gratuity have been taken away and ought to be compensated. The Applicant does not fall under any category of Statutory and Local Authorities Pensions Act 1980 ('SLAP 1980') and to be considered as having retired. The SLAP 1980 has not provided for the accrual of pension, gratuity or other benefits in the Applicant's favour by a "deeming action" in the event of the Court limiting or restricting his employment with the 2nd Respondent upon granting a Writ of Certiorari quashing the decision of the 1st Respondent to dismiss the Applicant. [17] As to the issues of non-pleading, the Applicant submitted that it would be premature and in fact inconsistent for the Applicant to plead such losses and damages especially when the Applicant was praying for an order of Certiorari to quash the Respondents' decision. The losses and damages only came into picture when the Federal Court had modified the reliefs granted by Court of Appeal and found that effective 'reinstatement' was not warranted. From the date of filing of the Judicial Review until the appeal in the Federal Court, the Respondents had never raised this issue of reliefs not being pleaded in the Statement of Claim. In fact, the Respondents had even submitted on the merits of the said losses/damages in the Federal Court. This issue is clearly an afterthought by the Respondents and they do not suffer any prejudice due to this. [18] As to the subject of “gainful employment”, the Applicant has testified he only carried out some part-time work where there was no fixed income and he had been using his savings for the period of the unlawful dismissal. The Applicant submitted that he is entitled to back wages from 2nd December 2013 until 21st October 2019 without any deduction as he was not gainfully employed during those periods. [19] The Applicant claimed that he has suffered major embarrassment among his peers due to the alleged external influence by the Applicant to advance a claim related to public service which he was ultimately punished with dismissal. Due to the unfair dismissal, the Applicant has suffered emotionally as he has to attend various court proceedings to determine the issues without a certainty of being reinstated. With these circumstances, the Applicant is entitled to claim the damages for embarrassment, anguish, and suffering. F. RESPONDENT’S SUBMISSION [20] The Applicant is not a pensioner and has not retired from the Local Authority's Service. The Federal Court did not decide that the Applicant is deem to continue in service from the date of the Federal Court Judgment until he attains the retirement age of 60. Thereafter he is also not deemed to have retired from the service of the Local Authority and to be awarded gratuity and pension and other benefits. Hence, the Applicant is not entitled for gratuity, pension and other benefits. The Applicant's wife is also not entitled to pension benefits under Article 147 of the Federal Constitution. [21] When the Federal Court modified the reliefs granted by the Court of Appeal and held that effective 'reinstatement' is not warranted and limited or restricted the Applicant's employment with the 2nd Respondent from the date of his dismissal until the date of the Federal Court decision, damages to be assessed should be limited or restricted to back wages only. The Federal Court did not in the grounds of Judgment order compensation in lieu of reinstatement from the date of its decision. [22] It is submitted that this Court "should take into account all relevant matters including the fact, where it exists, that the workman has been gainfully employed elsewhere after his dismissal". In this case the Applicant had been self-employed from the date of his dismissal to the date of the Federal Court decision. So, the fact of 'gainful employment' by the Applicant during the said period should be taken into account. [23] The Respondents submitted that the employment of the Applicant to date and to remain as an employee of the 2nd Respondent till the age of retirement is baseless and without any justification. The Federal Court had clearly stated that granting a Certiorari cannot be taken as meaning "reinstatement" and upholding the grant of Certiorari, moulded the relief and deprived the Applicant from continuing in service. [24] The provisions of SLAP 1980 are not applicable to the Applicant as the Federal Court modified the Order of the Court of Appeal and limited the Applicant in the employment of the 2nd Respondent from 28th November 2013 to 21st October 2019. [25] The Applicant can only claim for damages from 28th November 2013 to 21st October 2019 and is subject to assessment of damages. The question of the Applicant ought to be adequately compensated from the date of his dismissal till he attains the age of retirement was not ordered by the Federal Court. The Applicant is not entitled to claim for future damages after the date of the Federal Court Judgment. [26] The Applicant is not entitled as of right to damages for the period from 28th November 2013 till 21st October 2019 but it is still subjected to assessment of damages. The Applicant is not entitled as of right to the sum of RM 397,090.70 for the period of 28th November 2013 to 21st October 2019 including the back wages. The payment of full back wages is not automatic and cannot be granted mechanically. The Applicant must show that he was not gainfully employed during this period. [27] The Applicant also is not entitled at all to the sum of RM 1,617,892.55 for the period of 22nd October 2019 to 15th December 2035. [28] The Applicant is not entitled to claim for damages for deprivation of the right to livelihood as the Federal Court had already moulded the relief which he was entitled to subject to assessment of damages. Moreover, this claim was never pleaded in the Statement of Claim nor was it allowed in the Order of the Federal Court. The Applicant only plucked the figure of RM 500,000.00 for the loss of livelihood without submitting the basis of such figure. [29] The contention that the Applicant has legitimate expectation to be promoted has no relevance on the facts of this case as the Applicant has no vested right to be promoted. The Applicant is not entitled to damages for loss of promotional opportunity for the period 28th November 2013 until 21st October 2019 as he had not complied with Regulation 39 of the Public Officers (Appointment, Promotion and Termination of Service) Regulations 2012 which provides that the promotion of an officer is based on merit. In addition, his claim in itself is speculative. [30] Since the Applicant is not in the employment of the 2nd Respondent from 22nd October 2019 until he attains the age of retirement at 60 on 15th December 2035, he is not entitled to claim bonus as it is also speculative. [31] Lastly, the Applicant is not entitled to gratuity, pension and other benefits as he is not eligible under SLAP 1980. G. ANALYSIS AND FINDING [32] It is trite that the court in assessing damages take into consideration three fundamental principles. They are as follows: (i) restitution in integrum, (ii) remoteness of damages; (iii) mitigation of damages. Further in awarding damages, the Court ensure that the Applicant is not allowed to profit from it. The Federal Court in Datuk Mohd Ali Hj Abdul Majid v. Public Bank Bhd [2014] 6 CLJ 269; [2014] 4 MLJ 465; [2014] 4 AMR 301 held: [32] It is trite law that a claimant claiming damages must prove that he has suffered the damage. The claimant has the burden of proving both liability and quantum of damages, before he can recover the sum claimed. This follows from the general rule that the burden of proving a fact is upon him who alleges it and not upon him who denies it, so that where a particular allegation forms an essential part of a person's case, the proof of such allegation falls on him. (See s. 103 of the Evidence Act 1950). If he fails to prove both the liability and the quantum of damages, he loses the action. [33] Therefore, in a claim for damages, it is not sufficient for the plaintiff to merely state the amount of damages that he is claiming, he must prove the damage that he had in fact suffered to the satisfaction of the court............ [33] In this case it is axiomatic that the Applicant seeking substantial damages has the burden of proving both the fact and the amount of damages before he can recover. Thus, the Applicant must understand that if he brings an action for damages it is for him to prove the damages. It is not enough to write down the particulars and, so to speak, throw them at the head of the court saying, 'this is what I have lost. I ask you to give me these damages." [34] Prior proceeding with the assessment of damages, I took cognizance that instead of reinstating the Applicant, the Federal Court intervened and modified the order of the Court of Appeal whereby the Federal Court limited the Applicant in the employment of the 2nd Respondent from 28th November 2013 to 21st October 2019 having taken into account of the related grounds as stated in paragraph 109 of the Judgement. In that instance, the Federal Court stated that an effective reinstatement is not warranted on the facts of the case. From this position, I am of view that the Federal Court had already decided on the liability and allowed the Applicant's Judicial Review for the unlawful dismissal. The decision of the Federal Court to mould the relief after quashing the decision of the 1st Respondent is final and not questionable. The relief granted to the Applicant is clear. Since the order of the Federal Court is to solely determine the assessment of damages, I find that the issue of the claim was not pleaded does not arise. [35] At this juncture, I am of the considered view that there is a severance of employment by the Federal Court where its decision on 21st October 2019 brought about a complete cessation of employer and employee relationship. In the same contact the Applicant is no longer in the employment of the 2nd Respondent after the date of the Federal Court Judgment. It is my view that there is no necessity for the Respondents to issue a Notice of Termination to the Applicant after the Federal Court Judgment. [36] With these in mind, the next issue is whether the Applicant is entitled to claim for damages from the date of his unlawful dismissal which is from 28th November until the Applicant is deemed to retire upon attaining the age of 60 years on 15th December 2035. [37] It is worth to note that the Court of Appeal has allowed reinstatement but Federal Court did not allow an effective reinstatement. In that the Federal Court had only granted damages to the Applicant instead of reinstatement. I also took into account of the Applicant submission that the Federal Court did not in anywhere in the Grounds of Judgment restrain or limit the assessment of damages of the Applicant from 3rd December 2013 to 21st October 2019 but only ordered for this matter to be remitted to the High Court of Penang for assessment of damages before a Judge. [38] Having scrutinised the Court of Appeal decision, it is clear that the damages awarded as in Prayer 4 is related to the wrong dismissal where a Certiorari was ordered. Logically speaking the Applicant’s employment with the Respondent continues as usual. Thus, in my opinion, at this juncture the damages awarded therefore must be in relation to the wrongful dismissal and not beyond. It is noted that on 26th March 2018, the Federal Court had granted a stay of execution of the Court of Appeal's judgment dated 12th October 2017 until the final disposal of the appeal to the Federal Court. To my mind, since there is no longer a continuity of the Applicant’s service as it has ceased on 22nd October 2019 and also the Federal Court upheld Prayer 4 of the Court of Appeal, I am inclined to view that such order for damages to be assessed is related to the employment of Applicant until 21st October 2019 which is in respect of the duration of the wrongful dismissal. In other word, there is no continuity in service of the Applicant after the date of the Federal Court Judgment that renders the Applicant to be entitled to any consequential benefits thereafter. [39] Thus, in assessing the damages, it is not open for this Court to hold that the Applicant is deemed to retire upon attaining the age of 60 years on 15th December 2035 and subsequently entitled to claim for damages from the date of his unlawful dismissal which is from 28th November 2013 until the Applicant reach the retirement age of 60 years old. Therefore, I find that the Applicant is not entitled to claim for damages from the date of his unlawful dismissal which is from 28th November 2013 until the Applicant is deemed to retire upon attaining the age of 60 years on 15th December 2035. [40] The next issue is whether the Applicant is entitled to claim for damages from the date of his unlawful dismissal which is from 28th November 2013 until the date of the decision of the Federal Court on 21st October 2019. Following to my finding above, the answer to this issue is in the affirmative. Relying back to the damages prayed by the Applicant, I made the finding accordingly. [41] The Federal Court held at paragraph [110 & 111] of the Grounds of Judgment that the principle of 'no work no pay' has not been applied by the Courts in Malaysia. The Federal Court observed that the Applicant ought not to be denied compensation on the basis that he did not work as it was the Respondents themselves who unlawfully dismissed him in the first place. Salary & allowances from 03.12.2013 till 20.10.2019 amounting RM 397,090.70 and Bonus, for the years 2013 till 2019 amounting RM 30,944.72 [42] On the score, I find that the Applicant is entitled to claim the period from 1st December 2013 till 21st October 2019 in relation with the Salary and Allowances. [43] I am mindful that pursuant to Regulation 27 (4) of the Public Officers (Appointment, Promotion and Termination of Service) Regulations 2012, the annual salary movement of the Applicant is based on his annual work performance. In this case, I noted that from the date of his dismissal i.e. 28th November 2013 and upon communication of the decision of dismissal on 2nd December 2013 until the judgment of the Federal Court on 21st October 2019 there was no appraisal of the Applicant's work performance in which making the Applicant is not entitled to annual salary movement or annual increment. However, it must be borne in mind that the absence of such appraisal of the Applicant's work performance was the result of the Respondent wrongful dismissal and not the fault of the Applicant. [44] I am also mindful that bonus is not automatic but subject to conditions imposed by the Federal Government or the State Authority. However, if the bonus were given during the period of 2013 to 2019, it is rightfully also the Applicant is entitled to it, same with other employees of the Respondent at the material period. [45] In this aspect the Applicant is entitled from 2nd December 2013 until 21st October 2019 with annual increment in the year 2014, 2015, 2016, 2017, 2018 and 2019 which amount to RM 397,090.70. 36.12 and the bonus for the year 2013 to 21st October 2019 which amount to RM 30,944.72. Thus, the Applicant is entitled to be paid the bonus for the year 2013 until 21st October 2019 with a total gross salary with annual increment from 2nd December 2013 until 21st October 2019 including bonus which amounts to RM 428,035.42. Damages for loss of promotion and the increment in respect of such promotion [46] Regulation 39 (1) of the Public Officers (Appointment, Promotion and Termination of Service) Regulations 2012 provides that the promotion of an officer is based on merit. Thus, promotion is an advancement in rank, grade or both and it is at the discretion of the Promotion Board. On this score, I am of the considered view that an employee including the Applicant does not have a right to be promoted since it is a matter of discretion as specified in Regulation 39. The Applicant claim under this heading is dismissed, Pensions after 15th December 2035 and Salary & Bonus after 21st October 2019 till 15th December 2035. [47] It must be reiterated that pursuant to the judgment of the Federal Court, the Applicant is no longer in the employment of the 2nd Respondent. Thus, it is my opinion that the Applicant is also not a retired 2nd Respondent's employee. Since, the Federal Court did not put the Applicant in continuous employment on the same terms and conditions that he previously enjoyed in his employment with the 2nd Respondent, the issue of the Applicant applying for early retirement or continuing in the employment until he attains the age retirement at 60 years does not arise. Therefore, I find that the Applicant’s claim under this heading is dismissed. It follows that as to the entitlement of his pension by his wife after the Applicant’s demise as claimed is also dismissed. Gratuity from 01.07.2002 till 15 Dec 2035. [48] By and large gratuity is a payment given to the employees when they resign or retire in recognition of long and meritorious service. Gratuity is a lump sum payment and is paid only once on retirement. According to SP3, pension and gratuity is payable only if the Public Services Department is satisfied that the Applicant has complied with the conditions imposed under SLAP 1980. SP3 also quoted Section 3 (1) of SLAP 1980 which provides that "(1) No employee shall have an absolute right to compensation for past service or to any pension, gratuity or other benefit under this Act." [49] The conditions for retirement are stated in Section 9 of SLAP 1980 and only then the Applicant is entitled to pension, gratuity and other benefits. The Applicant had submitted that he is be deemed to have retired from the service of the 2nd Respondent on 22nd October 2019.and entitled to such benefits after attaining the age of 60 years old in 2035. However, since there is no provision in SLAP 1980 for payment of pension or gratuity when the Applicant ceases to be in the service of the 2nd Respondent on 21st October 2019, the Applicant who will be 43 years 10 months 6 days old on that date, is not entitled to any payment under SLAP 1980 from the Pension Authority. [50] It is clear that the Applicant has been in the service of the 2nd Respondent from 1st July 2002 until 21st October 2019 only, which is 17 years 3 months 20 days. Thereafter, the Applicant cannot longer be deemed to be in the employment of the 2nd Respondent. There is no provision in SLAP 1980 for payment of pension or gratuity when the Applicant ceases to be in the service of the 2nd Respondent on 21st October 2019. Thus, in my opinion the issue of the Applicant being entitled to pension and gratuity does not arise as there is no "deeming fiction" in the SLAP 1980 that the pension, gratuity and other benefits accrue in favour of the Applicant automatically by such fiction. In such circumstances, the Applicant cannot also be deemed to be continuing in service till he attains the age of retirement. I therefore find that the damages under this heading is dismissed. Golden Handshake [51] Payment of Golden Handshake is paid when the employee retires at the age of 60 in regard to the unused leave accumulated up to 150 days. According to the Respondents, on record, the Applicant did not apply to accumulate any of his unused vacation leave for the purpose of Golden Handshake in the years 2002 to 2013. During the period of dismissal until 21st October 2019, the Applicant did not accumulate the unused vacation leave for the years 2013 until 21st October 2019. The Applicant can only accumulate his unused vacation leave for the years concerned for the purpose of payment of Golden Handshake provided the Head of Department approves it. [52] The question here is whether the Applicant is entitled for the unused leave for the period of dismissal until 21st October 2019 bearing in mind that the application for the unused vacation leave for the purpose of Golden Handshake cannot be made due to the wrongful dismissal. Due to the unforeseen circumstances which led to the unlawful dismissal of the Applicant, I am of the view the Applicant has been deprived of the opportunity to apply for the accumulation of the unused vacation leave only with respect of the duration from 2nd December 2013 until 21st October 2019 and not beyond. Therefore, I find that the Applicant is entitled to Golden Handshake subject to number of days but limited to 150 days only calculated from 2013 until 21st October 2019 of his unused maximum of 15 days/annually. Based on the record and my calculation, the Applicant for the Golden Handshake is RM12,400.80. The calculation following the formula for FCGR is 1/30 x [Last Drawn Pay + Imbuhan Tetap] x No of days. [1/30 x [3743.74 (Enclosure 89) +300] x 92 days. The 92 was calculated from 1st January 2014 till 21st October 2019 = 90 days and the balance of 2 days is from 2nd December 2013. Loss of Medical Benefits [53] The Applicant is seeking damages for loss of medical benefits entitlement amounting to RM10,000.00. It is not disputed that all employees of 2nd Respondent receive free medical treatment in all government hospitals and government health clinics. In any other circumstances if the Applicant has undergone medical treatment and incurred expenditure, the Applicant is to produce any bills and receipts for any reimbursement which in this case is absent and not proven. I find that the claim for loss of medical benefit is dismissed. Damages for embarrassment, anguish and suffering [54] It was submitted that the Applicant has suffered major embarrassment among his peers due to the alleged external influence by the Applicant to advance a claim related to public service which he was ultimately punished with dismissal. Due to the unfair dismissal, the Applicant has suffered emotionally as he has to attend various court proceedings to determine the issues without a certainty of being reinstated. The Applicant claimed for loss and damages to his professional reputational loss as well as for embarrassment, anguish and suffering caused by the Respondents. However, the Applicant provides no evidence to support his claim for distress, inconvenience, agony, embarrassment and suffering. [55] In MILICENT ROSALIND DANKER & ANOR v. MALAYSIA-EUROPE FORUM BHD & ORS [2012] 2 CLJ 1076, the Court held that –