Muhamad Izwan Bin Mazlan v 1. ) Acp Mohd Amar Bin Mohajin (Pengerusi Lembaga Tatatertib Polis Diraja Malaysia (WA-25-182-07/2023)

A declaration or certiorari order quashing the decision of the Respondents in dismissing the Applicant pursuant to Regulation 38(g) of the Public Officers (Conduct and Discipline) Regulations 1993 (1993 Regulations) on the 60 basis that the decision was illegal and invalid

(ii) A Mandamus is ordered to compel the Respondents to clear the applicant's service record for the said dismissal, and he is reinstated to his former position.

(iii) An order to assess all back wages, allowances and 65 benefits the Applicant is entitled by law to receive from the date of his dismissal.

(iv) Other reliefs and costs. [2] On 14.01.2025: 70 2.1 After considering all the cause papers and respective written submissions of the parties, I find that the Applicant has failed to prove his case, and I dismissed the Applicant’s Judicial Review application with no order for cost. 75 2.2 Dissatisfied with the decision, the Applicant filed this appeal, and my reasons are as follows: S/N D/zNZag4vkKtow6Joto6cw BRIEF FACTS 80 [3] In a nutshell:

3.1 The Applicant was engaged as a police officer with the rank of a corporal at the “Perkhidmatan Kaunter Aduan (1), Cawangan Kerpolisan Am, Balai Polis, Cheras, IPD Cheras, Kuala Lumpur”:

It was uncovered and established that while on duty at the 85 “Unit Risikan/Operasi/Tahanan di Unit Tahanan, Jabatan Siasatan Jenayah Narkotik, Ibu Pejabat Bukit Aman,” the Applicant went on an unauthorised leave of absence from official duty for sixty-one (61) working days, and also for using bogus medical certificates.

On 10.03.2017, a formal complaint was lodged with “Jabatan Integriti dan Pematuhan Standard Bukit Aman” (JIPS) by “Jabatan Siasatan Jenayah Narkotik Bukit Aman” (JSJN) of the Applicant’s unauthorised leave of absence from official duty and the bogus medical certificates.

3.2 The procedure taken on the formal complaint:

On 28.05.2021, the Disciplinary Authority Chairman considered the complaint under Regulation 35 of the 1993 Regulations.

It was determined that the impugned complaint is severe enough to be inquired into with a view to dismissal or demotion under Regulation 37 of the 1993 Regulations.

The matter was referred to the 2nd respondent (the disciplinary board) for inquiry.

Finding a prima facie case against the Applicant, a Show Cause Letter was issued consisting of nine (9) charges for the S/N D/zNZag4vkKtow6Joto6cw Applicant to explain within twenty-one (21) days from the receipt of the said Show Cause letter:

1st Charge: Absent from official duty for thirteen (13) days in July 110 2020.

(ii) 2nd Charge: Absent from official duty for eight (8) days in August 2020.

(iii) 3rd Charge: Absent from official duty for seventeen days in January 2021.

(iv) 4th Charge: Absent from official duty for fifteen (15) days in February 2021.

5th Charge: Absent from official duty for two (2) days in March 2021.

(vi) 6th Charge: Using a bogus medical certificate for being absent from official duty for two (2) days in July 2021.

(vii) 7th Charge: Using a bogus medical certificate for being absent from official duty for two (2) days in July 2021.

(viii) 8th Charge: Using a bogus medical certificate for being absent from official duty for one (1) day in July 2021.

(ix) 9th Charge: Using a bogus medical certificate for being absent from 125 official duty for one (1) day in July 2021.

The Applicant submitted his reply to the Show Cause Letter on 16.03.2022. 130

On 23.03.2023:

After considering the reply, the 2nd Respondent (the disciplinary board) found that the explanation the Applicant/his representation offered was unacceptable to the disciplinary board.

The applicant was found guilty on all the charges and was dismissed from the force under Rule 38(g) of the 1993 Regulations: “If an officer is found guilty of a disciplinary offence, any one or any combination of two or more of the following punishments, 140 depending upon the seriousness of the offence, may be imposed on the officer:

warning.

fine.

forfeiture of emoluments.

deferment of salary movement.

reduction of salary.

reduction in rank or

dismissal.” 150

The Applicant was informed of the board's decision via a Disciplinary Punishment Notification Letter dated 24.03.2023. THE PARTIES ARGUMENTS 155 [4] In arriving at my decision, I have duly considered the cause papers and parties' arguments as follows: The Applicant’s arguments: 160 4.1 The Respondents' alleged failure to comply with Regulation 25 of the 1993 Regulations, which requires that in cases of employees being absent from duty for seven consecutive days or more without official leave, the head of the department shall report the particulars of that absence to the disciplinary authority, which may institute 165 disciplinary action against that employee. Failing to observe this requirement renders the dismissal void ab initio.

4.2 The respondents had committed an error by considering irrelevant factors in arriving at their decision and not allowing the Applicant to rebut, explain, or challenge the allegations. They never considered 170 in their determination that:

This is the first disciplinary action taken against the Applicant. He has an exemplary employment record, with citations throughout his employment.

The Applicant was suffering from bleeding haemorrhoids at the 175 material time. However, I take cognisance that no appropriate evidence was alluded to substantiate the medical claim. It remains merely a bare argument. S/N D/zNZag4vkKtow6Joto6cw

On the alleged dates of unauthorised absence from work, the Applicant claimed that he was suffering from haemorrhoids. 180 Though medical leave was granted for one or two days, but the applicant still couldn’t come to work due to persisting haemorrhoid issues. The Applicant alleged that the original medical certificate had been handed over to the administration department, and he did not make copies.

The Applicant had to travel very far from Dengkil to Bukit Aman while having issues with his medical condition. The Respondents should have considered these factors in arriving at their decision.

The Applicant also claimed that he had a bout of depression 190 when the doctor informed him that he and his wife had fertility issues and, thereby, the wife could not conceive a child to date.

The Applicant argued that the Respondents had afforded no rebuttal to the foregoing grounds. They have committed a miscarriage of justice in their determination with serious flaws 195 in the decision-making process.

The Applicant claimed that the doctrine of condonation applies in the present case where even though the Respondents knew about the issues concerning the Applicant since 2020, they did not take any action to warn or caution him. This delay in taking 200 any action against the Applicant necessarily amounts to condonation.

4.3 The Applicant also argued:

That the degree of punishment meted out by the Respondents 205 is disproportionate to the degree of misconduct committed. He cited Associated Provincial Picture Houses Ltd v S/N D/zNZag4vkKtow6Joto6cw Wednesbury Corp [1948] I KB 223, where it was observed that the court is entitled to investigate the action of the local authority to see whether they have taken into account matters 210 which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account.

It was argued by the Applicant that the Respondent did not consider Regulation 37D of the 1993 Regulations, which 215 provides: “If, after considering the officer's representation and the report of the Investigation Committee, if any, the appropriate Disciplinary Authority:

finds the officer guilty of the disciplinary offence alleged to have been committed by him and that the officer should be dismissed 220 or reduced in rank, the Disciplinary Authority shall impose the punishment of dismissal or reduction in rank as it deems appropriate.

finds the officer guilty of the disciplinary offence alleged to have been committed by him but that, after taking into consideration 225 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 Authority shall impose upon the officer any one or more of the 230 punishments other than dismissal or reduction in rank as specified in regulation 38 as it deems appropriate, or

finds the officer not guilty, the Disciplinary Authority shall acquit him.” 235

The Respondents failed to comply with Regulations 37D when they failed to consider the explanations proffered by the Applicant to justify his unauthorised leave of absence renders his dismissal by the Respondents void. In such circumstances, a lesser sentence for the alleged offences was warranted 240 against the Applicant.

The Respondents failed to provide grounds for their decision, and the refusal to accept the Applicant’s representation renders their decision invalid. In support, he cited the Court of S/N D/zNZag4vkKtow6Joto6cw Appeal’s decision in 2021 in Perbadanan Pengurusan 245 Trellises & Ors v Datuk Bandar Kuala Lumpur & Ors [2021] 2 CLJ 808; [2021] 3 MLJ 1, CA, that ruled there is a duty to give reasons where the law says so. A reasoned decision can be an additional constituent of the concept of fairness, where the reasons have to be provided to adequately and 250 meaningfully exercise the right of appeal. In the circumstances, the Applicant prays for an order in terms of his JR Application. The Respondents’ Arguments 255 [5] In opposing the Applicant’s JR Application, the Respondents alluded the Court to the legal parameters set by the law:

5.1 In Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3 MLJ 149, the Federal Court held as follows:

The courts have minimal power to review determinations by 260 public bodies.

They are constrained to confirm the findings in the disciplinary hearings.

Intervention is only warranted when a fundamental procedural flaw exists, leading to the dismissal of the public officer.

The courts cannot interfere merely because they may come to different conclusions on facts on the same basis of the same evidence. Weighing and assessing the evidence is the function of the disciplinary authority and not the courts. 270 5.2 The Respondents also cited:

The Federal Court in Public Services Commission Malaysia & Anor v Vickneswary a/p Santhivelu (substituting M Santhivelu a/l R Marimuthu, deceased) [2008] 6 MLJ 1, FC that ruled it is not the court but disciplinary authority who is to 275 S/N D/zNZag4vkKtow6Joto6cw decide this question of whether he has exculpated himself by his written representation.

The Federal Court in Ng Hock Cheng v Pengarah Am Penjara & Ors [1998] 1 MLJ 153, FC ruled that the Court cannot substitute the punishment imposed by the disciplinary 280 authority with its measure of punishment. Illegality 5.3 It is the Respondents position that the dismissal meted out was well within the confines and procedural parameters of the 1993 285 Regulations as provided for in the “Suratcara Perwakilan Fungsi-Fungsi, Kuasa-Kuasa, Tugas-Tugas dan Tanggungjawab-Tanggungjawab Tertentu – P.U.(B) 441/2000”:

The allegation of illegality by the Applicant is untenable. The 290 Respondents had acted reasonably promptly under Regulation 25(1) of the 1993 Regulation concerning the Applicant’s absence without official leave as contained in the Show Cause Letter:

Upon uncovering the misconduct committed by the 295 Applicant, the Head of Department duly notified the Jabatan Integriti dan Pematuhan Standard Bukit Aman (JIPS) on 05.10.2020 (three months from the first act of absence without official leave). There was never any inordinate delay in taking appropriate action on the 300 matter.

It must be recognised that Regulation 25 does not specify the time limit for the disciplinary authority to take action.

It took approximately eight months, from 05.10.2020 to 28.05.2021, for the Chairman of the Disciplinary Authority 305 to determine the punishment for the misconduct committed: Public Services Commission Malaysia & Anor v Vickneswary Santhivelu [2008] 6 CLJ 573, FC, observed that whether there was an unreasonable delay is a question of the facts and circumstances in each 310 particular case. The General Orders do not provide specific times when disciplinary action can be taken. Any delay, if there was one, cannot be taken as a ground to support the allegation of procedural unfairness. The Court of Appeal in Ezkay Mulya bin Sapawi v Dato Sri Nadzri 315 Siron (Pengerusi Lembaga Tatatertib Kumpulan Sokongan (No.1) Jabatan Pengangkutan Jalan Malaysia & Ors) [2022] 5 MLJ 472, CA observed that this statute does not contain a specific time limit provision. The Court must be cautious in applying common law 320 principles on the matter.

5.4 The Respondents had complied with natural justice and 325 procedural fairness as contained in Article 135 (2) of the Federal Constitution. The Respondents cited the Court of Appeal in Muhammad Farid bin Muntalib v Tan Sri Dato Khalid bin Abu Bakar, Pengerusi Lembaga Tatatertib Polis DiRaja Malaysia Bukit Aman & Ors [2019] 1 MLJ 604 that 330 held, the workings of an appropriate procedural fairness within the construct of the statute:

The Disciplinary Authority, upon receiving the official complaint, acted to determine the offence committed that warranted dismissal as a consequence thereof: Regulation 37 of the 1993 Regulations.

(ii) The Chairman, in considering all the available information before him, was satisfied that there was a prima facie case: Regulation 37

and (2).

(iii) The Chairman issued a Show Cause Letter containing the specific charges which would attract dismissal or demotion for an 340 explanation or representation to be made Regulation 37(2)(b).

(iv) The Chairman asks for a written explanation or representation within twenty-one days of receiving the Show Cause Letter to exculpate those charges: Regulation 37(2)(b).

The accused files his Letter of Representation for the consideration 345 of the Disciplinary Authority.

(vi) The Disciplinary Authority convened and deliberated on the contents of the Letter of Representation and whether to accept or reject it. Once it is determined that the Letter of Representation failed to exculpate the accused, the Disciplinary Authority would 350 mete out the appropriate punishment as envisaged in the Show Cause Letter that had duly notified the accused of the consequences of failing to exculpate from the charges: Regulation 37(4).

General Order (Conduct & Discipline) Chapter D 1980 had 355 been replaced with the 1993 Regulations to accord with the concept of natural justice and procedural fairness in Article 135 of the Federal Constitution: Ghazi bin Mohd Sawi v Mohd Haniff bin Omar, Ketua Polis Negara, Malaysia & Anor [1994] 2 MLJ 114; [1994] 2 CLJ 333 (SC); Lembaga 360 Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utra Badi A/l K Perumal [2001] 2 MLJ 417; [2001] 2 CLJ 525.

The Applicant has been granted the right to be heard. Therefore, alleging that no opportunity to be heard was 365 granted is untenable. The Privy Council in Zainal bin Hashim S/N D/zNZag4vkKtow6Joto6cw v Government of Malaysia [1979] 2 MLJ 276, PC held that the right to be heard under Article 135(2) of the Federal Constitution does not require that the person concerned be given an oral hearing and it could not be argued that the failure 370 to provide the appellant with an oral hearing was a denial of natural justice

The decision by the Disciplinary Authority:

Was under the prevailing law and procedure (Article 135(2) of the Federal Constitution and Regulation 34(1) of 375 the 1993 Regulations). Regulation 34(1) says: Subject to sub-regulation (2), no officer shall be dismissed or reduced in rank in any disciplinary proceedings under this Part unless he has first been informed in writing of the grounds on which such action is proposed, and he has been afforded a reasonable 380 opportunity of being heard.”

The Respondents argued that:

The Applicant was duly informed in writing via the Letter of 385 Show cause (13.01.2022) of the charges against him and the probable punishment if he can’t explaint himself (L.3 AIS, exh: MIM-4).

(ii) He was given a reasonable opportunity to be heard by furnishing a Letter of Representation that can exculpate him 390 from the charges within twenty-one days from the receipt of the said letter (L.3 AIS, exh: MIM-5).

The Court was alluded to the fact that in his Letter of Representation, the Applicant had expressly admitted to 395 being absent from official duty without approval on the first five charges in the Letter of Show Cause because he was under emotional distress. In Chan Kok Choi v Ketua Polis Negara & 2 Ors [2008] 1 MLJ 725, FC, it was held S/N D/zNZag4vkKtow6Joto6cw that holding an oral hearing would not be helpful when 400 there is already an admission on the charges.

The 2nd Respondent had explained that (i) for the first five charges, the Applicant did not adduce any supporting medical finding of his medical condition, and (ii) from the sixth to ninth charges involved dishonesty in bogus 405 medical certificates. Irrationality 5.5 The allegation of irrationality does not arise since the Disciplinary Authority duly considered the explanation contained in the Letter of 410 Representation. There is no law in place (statutory or otherwise) that compels the authority to accept whatever explanation proffered by the Applicant to exculpate himself from the charges in the Show Cause Letter. The discretion is with the Disciplinary Authority grounded on the materials before it. In the present case, the 415 Disciplinary Authority was satisfied that the Applicant’s explanation did not exculpate him from the charges: Public Services Commission Malaysia & Anor v Vickneswary Santhivelu [2008] 6 CLJ 573, FC. On the allegation that the Respondents failed to provide reasons for the impugned decision, it was argued that the 420 position had been clarified by the Federal Court in Datuk Bandar Kuala Lumpur v Perbadanan Pengurusan Trellises & Ors and other appeals [2023] 3 MLJ 829, FC when it observed that the duty to give reasons is determined on a case-by-case basis. There is no general duty under common law unless provided for in the 425 statute or an exceptional case warrants it. The 1993 Regulations S/N D/zNZag4vkKtow6Joto6cw have no such provision, and the facts do not support an extraordinary situation that requires reason to be given.

5.6 The Federal Court in Lembaga Tatatertib Perkhiidmatan Awam Hospital Besar Pulau Pinang & Anor v Utara Badi a/l Perumal 430 [2001] 2 MLJ 417, FC, it was observed that an officer has no such right to enter a separate plea of mitigation before sentence if the disciplinary authority had made it clear in the show cause letter that the disciplinary proceeding was initiated to dismiss or to reduce him in rank. That right, it would appear from the judgment, had been 435 construed to be no more inclusive than the right to make representation to exculpate himself.

5.7 Responding to the claim by the Applicant that condonation had taken place by the Respondent caused by the alleged delay in taking action against the Applicant, it was argued that the 440 disciplinary proceeding against the Applicant was initiated and pursued until his dismissal, and it cannot be said that there was no action taken towards his misconduct. Disciplinary action was also taken against the Applicant within a reasonable period, and there has been no delay in taking the disciplinary action against him. 445 5.8 The Respondents pointed out that the legal position is clear that any decision made by the Disciplinary Board of the Royal Malaysian Police is final, and there is no provision to appeal under the Surat Cara Perwakilan P.U.[B] 441/2000. Accordingly, any PDRM officer and member unsatisfied with the decision of the 450 Disciplinary Board can apply for judicial review as is with the present case. No written law provides the Applicant the right to appeal. S/N D/zNZag4vkKtow6Joto6cw In the circumstances, Respondents prays that the Applicant JR Application be dismissed with costs. 455 THE LAW [6] Lord Diplock set out the legal principle regarding judicial review in the case of Council of Civil Service Unions & Ors v. Minister of Civil Service [1985] AC 374, which the Federal Court has applied 460 in the case of R Rama Chandran v. The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145, FC that I have distilled as follows:

Lord Diplock defined the three grounds of review: (a) illegality,

irrationality, and (c) procedural impropriety:

‘Illegality’:

The decision maker must understand directly the law that regulates his decision-making power and must give effect to it.

(ii) Whether he has or not is par excellence is a justiciable question to be decided.

‘Irrationality:

‘Wednesbury unreasonableness’: Associated Provincial 475 Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223.

(ii) It applies to a decision so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had used his mind to decide the question could have arrived at it.

(iii) Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer.

(iv) ‘Irrationality’ by now can stand on its own feet as an accepted ground on which a decision may be attacked by Judicial 485 Review.

‘Procedural impropriety’:

Failing to observe basic rules of natural justice.

(ii) Failure by an administrative tribunal to observe procedural 490 rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. S/N D/zNZag4vkKtow6Joto6cw

Lord Diplock also mentioned ‘proportionality’ as a 495 possible fourth ground of review, which called for development. [7] In a nutshell, the Federal Court in Ranjit Kaur a/p S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 6 MLJ 1, FC held:

The Rama Chandran decision by the FC has given the reviewing court a license to review decisions without restraint for substance, even when the decision is based on a finding of facts.

Post Rama Chandran cases have applied some brakes to the 505 courts’ liberal approach.

The Federal Court in the case of Kumpulan Perangsang Selangor Bhd v Zaid Noh [1997] 1 MLJ 789; [1997] 2 CLJ 11, FC after affirming the Rama Chandran decision held that there may be cases in which for reason of public policy, 510 national interest, public safety or national security the principle in Rama Chandran may be wholly inappropriate.

The Federal Court, in Petroliam National Bhd v. Nik Ramli Nik Hassan [2004] 2 MLJ 288; [2003] 4 CLJ 625, FC also observed that the reviewing court may scrutinise a decision 515 on its merits but only in the most appropriate of cases and not every case is amenable to the Rama Chandran approach.

A reviewing judge ought not to disturb the findings of the Industrial Court unless they were grounded on illegality or plain irrationality, even where the reviewing judge might not 520 have come to the same conclusion. [8] Law of Employment on the Impugn Issues: S/N D/zNZag4vkKtow6Joto6cw

Several actions that constitute major misconduct in an employment relationship generally:

Insubordination.

Conflict of Interests.

Absenteeism:

BR Ghaiye, in Misconduct in Employment, 2nd Edition (Eastern Book Company, 1977), pg.708 wrote: The expression “LEAVE” means leave of absence, that is, the 530 permission obtained by an employee from his employer relieving him from the duty of attending to work. The dictionary meaning of the word “leave” is permission. Unless such permission is given or leave sought is granted, it cannot be said that the person seeking leave can absent himself from 535 duty in an unauthorised manner.

(ii) Crowne Plaza Riverside Kuching v Mohamad Zulkarnaen Suhaili [2000] 2 ILR 148 observed that the dismissal of the employee for being absent for three days without prior permission was with just cause and excuse:

An absent workman misconducts himself if he was absent from work without reasonable excuse, or if he had a reasonable excuse, fails to inform or attempt to inform his employer of such excuse before or at the earliest possible opportunity during his absence.

The claimant had been absent during the relevant dates and had made no reasonable attempts to inform the hotel before or at the earliest opportunity during his absence, an act which he was obligated to do.

The claimant had failed to comply with a fundamental 550 obligation of an employee whose principal duty is to be present at his employer’s workplace to render the services expected of him.

Even if he had an excuse for being absent, to undertake that essential duty, which is pure common sense and the 555 legitimate expectation of any employer to inform the hotel of his inability to turn up for work for three days at a time when the hotel needed all available staff.

(iii) Afzal Amran v Etiqa Insurance Berhad [2017] 2 ILR 512 560 observed that the workman was dismissed with just cause and excuse when he absented himself for medical reasons, but there S/N D/zNZag4vkKtow6Joto6cw was no evidence that the employer had been expeditiously informed about it. 565

(iv) Abusing medical certificates: BR Ghaiye, in Misconduct in Employment, 2nd Edition (Eastern Book Company, 1977), pg.724, wrote: Workers have no right to take leave on the grounds of sickness when they are not sick. – Sometimes, the workers feign sickness to 570 get leave, which is called “malingering”. The dictionary meaning of “Malinger” is to feign sickness to avoid duty. It is usually done by producing a false medical certificate. Malingering is a recognised misconduct, but to show that the worker has taken leave on false grounds of sickness, the medical certificate has to be examined in 575 the light of the attendant and other circumstances.

Fraudulent behaviour.

Dishonesty and Impropriety.

In Lim Phooi Man v Samsung Malaysia Electronics (SME) 580 Sdn Bhd [2019] 2 ILR 540, the claimant’s actions of providing false information and dishonestly misrepresenting her qualifications to secure the job had amounted to serious misconduct, as it had destroyed the fiduciary relationship between the company and her, and it had justified her 585 dismissal. Despite a seven-year lapse, the evidence showed that the company acted promptly upon discovering the misconduct. Her actions had culminated in the company not being able to repose the necessary trust and confidence in her to maintain her employment.

(ii) It is trite that an employer who condones the misconduct of his employee cannot subsequently dismiss him for the said misconduct as the employer is deemed to have waived his right to take action against his employee. In MUI Bank Berhad 595 Johor v Tee Puat Kuay @ Tee Puat Kway [1993] 4 CLJ 69, HC, it was held that the company, having found that the claimant was guilty of “misappropriation” (which was serious misconduct), allowed the claimant to continue working in the Segamat Branch and subsequently transferred him to their 600 headquarters in Kuala Lumpur where he worked for about five months before he was dismissed. The Industrial Court found that the applicant had “condoned” the respondent’s actions. It was observed that: “The question that arises here is whether the Industrial Court 605 was correct in law in finding “condonation” on the facts of the matter. In my mind, misconduct is deemed “condoned” when an election is made to retain an employee guilty of misconduct. S/N D/zNZag4vkKtow6Joto6cw As such, I cannot see how the Industrial Court had committed an error of law in coming to that decision. There is no such thing 610 as a law of condonation. It is essentially a question of fact, depending on the circumstances of the matter.”

Thievery.

Breach of employer’s policies and procedures. 615 FINDINGS [9] I have examined all-cause papers and the parties' submissions, and I find as follows:

Considering my observation in the totality of the evidence and 620 my observations in the parties' respective arguments in paragraphs [3], [4], and [5] above, I find from the totality of the evidence that the Applicant has failed to discharge his burden to establish its claim against the Respondents.

The Applicant could not produce compelling or persuasive 625 evidence to tilt the evidential scale in his favour. I find no legal basis to disturb the findings of the Disciplinary Authority as there is no procedural irregularity to impair the impugned decision.

From my observation of the parties' arguments, the Applicant 630 had not been denied his right to be heard within the construct of Regulations 1993.

Where the employee disputes the dismissal, it is for the employee to establish that the dismissal was without just cause or excuse. In failing to establish the dismissal as 635 wrongful or unjust, no onus falls on the employer to establish anything or that no such dismissal has occurred as alleged. S/N D/zNZag4vkKtow6Joto6cw [10] Grounded on the totality of the materials before me, it is my finding that:

It is irrefutable that the Applicant:

Had expressly admitted to the first five charges in the Show Cause Letter. His proffered medical excuse for being absent without official leave could not be substantiated as no cogent evidential material was 645 adduced to support it. The Applicant just made a bare argument.

It is a trite law that absenteeism is a significant misconduct that warrants a dismissal. A person cannot be absent from duty in an unauthorised manner.

To reiterate the observation in Crowne Plaza Riverside Kuching v Mohamad Zulkarnaen Suhaili [2000] 2 ILR 148 that the employee's dismissal for being absent for three days without prior permission was with cause and excuse. An absent workman misconducts himself if he 655 was absent from work without reasonable excuse, or if he had a reasonable excuse, fails to inform or attempt to inform his employer of such excuse before or at the earliest possible opportunity during his absence.

By the same token, in Afzal Amran v Etiqa Insurance 660 Berhad, [2017], 2 ILR 512, the workman was dismissed with just cause and excuse when he absented himself for medical reasons, but there was no evidence that the employer had been expeditiously informed about it. 665

It is irrefutable that charges six to nine in the Show Cause Letter concern bogus or false medical certificates by the Applicant.

There is no material evidence of his alleged sickness to support the contention.

To reiterate, workers have no right to take leave on the grounds of sickness when they are not sick. As was pointed out, workers who feign sickness to get leave are called “malingering," a recognised misconduct.

General Tyre Retreaders Sdn Bhd v Vadiveloo 675 Munusamy [1996] 2 ILR 1419 held that persistent absenteeism by an employee under the pretext of medical unfitness may indicate that the employee is not performing his contractual obligations to his employer.

Dishonesty is a significant misconduct that warrants 680 dismissal. In Sitt Tatt Industrial Gases Sdn Bhd v Puvananderan Ganasamoorthy [2003] 2 ILR 485, it was observed that since the employer-employee relationship carries with it the duty of fidelity on the employee's part and a relationship of trust and 685 confidence, dishonesty on the part of the employee is an attack upon the trust and confidence of the employer. In Norizan bin Bakar v Panzana Enterprise Sdn Bhd [2013] 6 AMR 338; [2013] 9 CLJ 409, FC concluded that the misconduct warranted dismissal as it contained 690 elements of dishonesty

The allegation of condonation by the Applicant is unsupported by the facts. There is no such thing as a law of condonation. It S/N D/zNZag4vkKtow6Joto6cw is essentially a question of fact, depending on the circumstances of the matter: MUI Bank Berhad Johor v Tee 695 Puat Kuay @ Tee Puat Kway [1993] 4 CLJ 69, HC [11] I agree with the arguments of the Federal Counsel representing the Respondents in paragraphs [5] above that, amongst others is that:

The dismissal meted out was well within the confines and 700 procedural parameters of the 1993 Regulations.

The Applicant had been duly accorded his right to be heard within the construct of Regulations 1993 that had replaced the General Order (Conduct & Discipline) Chapter D 1980 to accord with the concept of natural justice and procedural 705 fairness.

Allegation of illegality and proportionality of punishment by the Applicant is unsustainable for the reasons set out in paragraph [5]. There was no evidence of any undue delay in the whole disciplinary process that had offended any legal provisions. 710 [12] The Federal Court in Datuk Bandar Kuala Lumpur v Perbadanan Pengurusan Trellises & Ors and other appeals [2023] 3 MLJ 829, FC, held that the duty to give reasons is determined on a case-by-case basis. There is no general duty under common law unless provided for in the 715 statute or an exceptional case warrants it. The 1993 Regulations have no such provision. In Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utara Badi a/l Perumal [2001] 2 MLJ 417, the Federal Court had clarified that an officer has no such right to enter a separate plea of mitigation before sentence if the 720 disciplinary authority had made it clear in the show cause letter that the disciplinary proceeding was initiated to dismiss or to reduce him in rank. S/N D/zNZag4vkKtow6Joto6cw The Applicant's arguments to support his JR application, as seen in paragraphs [4] above, are therefore untenable. 725 CONCLUSION [13] In conclusion, I find the 2nd Respondent’s decision was made in accordance with the law, not tainted with illegality, irrationality nor procedural impropriety. This JR application is therefore dismissed with no order for costs. 730 Dated 07.04.2025. 735 HAYATUL AKMAL ABDUL AZIZ JUDGE HIGH COURT OF MALAYA KUALA LUMPUR 740 745 Parties: Mohamad Nasruddin bin Ab Rahman Messrs Nas Rahman & Co 750 Counsel for the Applicant Nurul Muhaiman Mohd Azman Federal Counsel for the Respondents S/N D/zNZag4vkKtow6Joto6cw