Mustapha Kamil Bin Abdullah v 1. ) Ketua Pegawai Eksekutif Perbadanan Pengurusan Sisa Pepejal dan Pembersihan Awam (BA-22NCvC-371-09/2020)

KETUA PEGAWAI EKSEKUTIF PERBADANAN PENGURUSAN SISA PEPEJAL

PERBADANAN PENGURUSAN SISA PEPEJAL DAN PEMBERSIHAN AWAM …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] The Plaintiff was a civil servant working in the National Audit Department when he was seconded to the Solid Waste and Public Cleansing Management Corporation, the 2nd Defendant. Whilst serving with the 2nd Defendant, he applied to be transferred permanently to the 2nd Defendant. Thereafter, the 2nd Defendant took steps to give effect to his application, culminating in his 19/10/2023 07:02:07 BA-22NCvC-371-09/2020 Kand. 89 release from government service by the Public Service Commission. [2] The permanent transfer to the 2nd Defendant however, did not materialize as the 2nd Defendant eventually decided against offering a permanent post to the Plaintiff. When his period of secondment ended, he returned to serve in the National Audit Department, until his compulsory retirement. [3] He claims that since all necessary procedures and steps had been taken in respect of his permanent transfer to the 2nd Defendant, he is deemed to have been appointed from the date of release by the Public Service Commission. He now sues both the Defendants, seeking to be granted all the benefits he would have received if he had been employed as a permanent officer with the 2nd Defendant. Salient facts [4] The facts, in the main, are not in dispute. The documents adduced at the trial are self-explanatory as to the factual scenario upon which the present dispute arose. [5] In 2016, the Plaintiff was an auditor employed on Grade W44 in the National Audit Department. [6] It is not unusual for employees of the civil service to be seconded to other organizations for a period of time as the secondment usually offers better remuneration and benefits. The procedure regulating secondment is contained in Pekeliling Perkhidmatan Bilangan 12 Tahun 2008 Dasar dan Prosedur Pelantikan Secara Peminjaman, Pertukaran Sementara dan Pertukaran Tetap. [7] In the case of the Plaintiff, he was seconded to the service of the 2nd Defendant for a period of 2 years with effect from 2.6.2014 to 1.6.2016, on a higher grade, i.e Grade W48. Upon the expiry of his secondment period, he received an extension from 2.6.2016 to 1.6.2018 to serve in the 2nd Defendant. [8] On 1.7.2017, he applied to be transferred as a permanent officer of the 2nd Defendant, stating that he wished to complete his service there until his compulsory retirement on 9.9.2019. [9] In the interim, on 8.2.2018, the Plaintiff was offered a promotion post of Acting W48 in the National Audit Department. There is no bar to civil servants on secondment to be offered a promotion based on their substantive post. He was told to indicate his acceptance of the offer or otherwise by 15.2.2008. [10] The Plaintiff claimed that it was around this time that he was informed of the 2nd Defendant’s intention to offer him a permanent post of an auditor at Grade W48. In view of this representation, he formally rejected the offer by the Auditor General on 15.2.2018 as he was convinced of the certainty of the offer of a permanent post with the 2nd Defendant. [11] On 15.2.2018, the 2nd Defendant also wrote to the Auditor General to inform of its intention to approve the Plaintiff’s application to be transferred permanently to serve the 2nd Defendant, and to offer him the post of an auditor on Grade W48. [12] The proposal of the 2nd Defendant was discussed at the Mesyuarat Jawatankuasa Pelantikan Bil. 1/2018 on 12.3.2018. The meeting was chaired by the Chief Executive Officer of the 2nd Defendant. [13] The relevant minutes read as follows,

4.4.4 Mesyuarat turut dimaklumkan pegawai ini telah mengemukakan permohonan pertukaran tetap sebagai Juruaudit Gred W48 di Perbadanan menerusi surat yang bertarikh 7 Julai 2017. Perbadanan juga telah mengemukakan cadangan tawaran pertukaran tetap pegawai ini kepada Jabatan Audit Negara selaku agensi pembekal. …

4.4.6 Mesyuarat bersetuju meluluskan pertukaran tetap En. Kamil Mustapha bin Abdullah sebagai Juruaudit Gred W48 berkuatkuasa 2 Jun 2018 dengan mengambil kira sumbangan beliau ke atas Perbadanan terutamanya dalam menyelesaikan Laporan Ketua Audit Negara (LKAN). Walau bagaimanapun, mesyuarat memaklumkan urusan pertukaran tetap pegawai ini hanya boleh dilaksanakan selepas mendapat persetujuan daripada Jabatan Audit Negara selaku agensi pembekal. Tindakan: Seksyen Pengurusan Sumber Manusia [14] Following the decision at this meeting, the 2nd Defendant wrote to the National Audit Department on 30.3.2018 to furnish several documents requested by the latter for action to be taken in the proposed appointment exercise. [15] Meanwhile, the Plaintiff’s period of secondment was further extended by another 6 months from 1.6.2018 to 1.12.2018. This was evident from the letter of the Auditor General to the 2nd Defendant on 23.5.2018. [16] On 23.5.2018, the National Audit Department also wrote to the Public Services Commission (“PSC”) to confirm its support to the Plaintiff’s permanent transfer to the 2nd Defendant. The PSC was the relevant Appointing Authority for the Plaintiff. [17] On 30.8.2018, PSC responded with its approval for the Plaintiff to be released and transferred to the 2nd Defendant. [18] Upon receipt of the approval letter from PSC, the National Audit Department wrote to the 1st Defendant on 17.10.2018 to inform that PSC had consented to release the Plaintiff to be permanently transferred to the 2nd Defendant. [19] However, in a surprising turn of events, the Plaintiff was subsequently informed by the Defendants that his transfer to the 2nd Defendant on Grade W48 was not approved. This resulted from the discussion at the Mesyuarat Anggota Perbadanan Pengurusan Sisa Pepejal dan Pembersihan Awam Bilangan 4 Tahun 2018 which was held on 31.10.2018. At the said meeting, the proposal to appoint the Plaintiff as a permanent officer was discussed, including the proposed date of appointment. [20] However, the discussion concluded with the following decision,

Mesyuarat memutuskan untuk TIDAK MELULUSKAN cadangan pelantikan secara pertukaran tetap Encik Mustapha Kamil Bin Abdullah (No. K/P: 590909-03-5129) Juruaudit Gred 44 dari Jabatan Audit Negara sebagai Juruaudit Gred W48 di Perbadanan Pengurusan Sisa Pepejal dan Pembersihan Awam (SWCorp). Tindakan : Bahagian Sumber Manusia, SW Corp [21] Following the decision taken at the said meeting, by letter dated 28.11.2018, the 2nd Defendant informed the Auditor General that, “Mesyuarat Khas Anggota Perbadanan (SWCorp) yang bersidang pada 31 Oktober 2018 telah memutuskan untuk tidak meluluskan cadangan pelantikan secara pertukaran tetap Encik Mustapha Kamil Bin Abdullah (No.K/P: 590909-03-5129) sebagai Juruaudit Gred W48 di Perbadanan Pengurusan Sisa Pepejal Dan Pembersihan Awam (SWCorp).” [22] The Auditor General was also informed that the Plaintiff’s period of secondment would end on 2.12.2018. [23] The Plaintiff made an internal appeal against the decision of the 2nd Defendant but to no avail. Upon the expiry of his secondment period, he returned to his former post in the National Audit Department. In view of his earlier rejection of Acting W48, he could only assume the post of W44. He remained in that post until his retirement on 9.9.2019. [24] By a Notice of Demand dated 14.1.2020, the Plaintiff gave notice of his intention to seek a declaration and order that he be appointed to a permanent post on Grade W48 with effect from the date of release by PSC vide letter dated 30.8.2018. The Plaintiff’s case [25] In essence, the Plaintiff claims that the Defendants breached their promise to appoint him on a permanent post of W48. His reliance on said promise caused him to reject the Acting W48 post offered by the National Audit Department. [26] His reliefs, expressed somewhat in a convoluted manner in paragraph 22 of his Amended Statement of Claim, seeks for the following:-

a declaration that the acts of the Defendants in communicating with the National Audit Department of its intention to offer a permanent W48 post to the Plaintiff, constituted a valid offer of appointment;

(ii) a declaration the Plaintiff, by rejecting the Acting Gred W48 post in the National Audit Department and in obtaining the approval and release of PSC, had done all that was necessary to be appointed a permanent officer on Grade W48 with the 2nd Defendant;

(iii) an order that the Defendants within 14 days of the court order, take all necessary steps to appoint the Plaintiff a permanent officer on Grade W48 with effect from 1.9.2018 following the approval of PSC on 30.8.2018; and

(iv) a declaration that the Plaintiff be paid all remuneration, allowances and benefits of a Grade W48 officer with effect from 1.9.2018. The Defendants’ case [27] The Defence case, from the Statement of Defence filed takes the following position. The Plaintiff had misconstrued the import of the 2nd Defendant’s letter dated 15.2.2018 to the Auditor General. It was by no means an offer to the Plaintiff to be appointed a permanent officer on Grade W48. It was merely to inform the Auditor General of its intention to offer the permanent post. The Plaintiff rejected the Acting W48 post on an entirely wrong assumption on his part. [28] Whilst the Jawatankuasa Pelantikan did approve the proposal to appoint him, the 2nd Defendant had never issued any letter of offer to appoint him as a permanent officer on Grade W48. The proposed appointment was to be deliberated at a higher level meeting i.e Mesyuarat Anggota Perbadanan on 31.10.2018, which then decided not to make the offer. [29] The defence denies any promise or representation on its part. Analysis and decision of this court [30] Before discussing the merits of the respective parties’ case, some preliminary matters ought to be dealt with first. The declarations sought [31] The reliefs sought are in the nature of declarations. As declaration is a discretionary remedy, the court must be satisfied that the relief ought to be granted in favour of the Plaintiff. (See: Salijah bte Ab Lateh v Mohd Irwan bin Abdullah [1996] 2 SLR 201, AmGeneral Insurance Bhd v Iskandar bin Mohd Nuli [2016] 1 MLJ 818). No witnesses called for the defence [32] The defence did not call any witness in support of its case. The Defendants however, did not make a submission of no case to answer, as it did not intend to call any witnesses. The case was left to be decided on the Plaintiff’s own evidence. [33] It is trite that in civil cases, the burden lies on the Plaintiff throughout to prove its case, whether or not the defence calls witnesses to testify. In any event, I find that the case is largely to be determined on the undisputed documentary evidence. [34] I shall now deal with the issues that arise from the contention of the parties. Was there a valid offer of permanent appointment with the 2nd Defendant [35] The Plaintiff relies strongly on the letters by 2nd Defendant’s to the National Audit Department to contend that the said communication constituted a valid offer of a permanent post. [36] I agree with the defence that the Plaintiff’s contention that a valid offer to appoint him had been made, is without basis and wholly misconceived. My reasons are as follows. [37] On 7.7.2017, the Plaintiff set in motion his application to be transferred as a permanent officer by his application letter to the 2nd Defendant. [38] The 2nd Defendant’s first communication with the National Audit Department on this matter was vide its letter of 15.2.2018. The letter merely stated that “SW Corp berhasrat untuk menawarkan pelantikan secara tetap jawatan Juruaudit Gred W48…” It seems to me far-fetched to construe the letter as stating with any certainty that the Plaintiff will be offered a permanent post. [39] It is unfortunate that he was convinced that his application would be successful when he chose to reject the Acting W48 offered by the National Audit Department on 15.2.2018. He claimed to have done so as he was promised a permanent post with the 2nd Defendant. [40] It was a risk he took in not accepting the offer by the Auditor General. The Plaintiff ought not to have relied on the Defendant’s letter of 15.2.2018 to reject the offer of Acting W48. When the permanent post with the 2nd Defendant did not eventually materialize, he cannot seek to claim against the 2nd Defendant what he forgo in his substantive service. [41] His hopes appeared to have been further heightened with the decision of the Appointment Committee at its meeting on 12.3.2018 to favourably consider his application to be transferred permanently to the 2nd Defendant. He also relies on the letter dated 30.3.2018 sent by 2nd Defendant furnishing the requisite documents requested by the National Audit Department for its further action. [42] Upon perusing the letter, I am of the view that it was merely to comply with the request by the National Audit Department to furnish the documents stipulated therein. [43] It is absurd to contend that these documents taken cumulatively constitute a valid offer by the 2nd Defendant. There are administrative procedures to be observed before an offer by the 2nd Defendant can be made. The Plaintiff, having been in service for a good number of years cannot be ignorant of these requirements. [44] These prerequisite procedures must then culminate in a formal letter of offer by the 2nd Defendant. There was none. [45] To conclude the issue on the declarations sought in paragraphs 26

and (ii) above, I am of the view that they are devoid of merit. Can be Plaintiff be deemed appointed following PSC’s letter of release dated 30.8.2018 [46] To recap, the Plaintiff seeks declarations to the effect that a valid offer of appointment had been made by the 2nd Defendant. In the event he succeeds in the declarations sought, the Plaintiff further seeks an order that he is deemed appointed by the 2nd Defendant on 1.9.2018 following PSC’s letter of release to the Auditor General on 30.8.2018. [47] I do not find any merit in this relief sought. PSC’s letter merely stated that it had approved the Plaintiff’s release from his current post in order that he can be transferred to a permanent post with the 2nd Defendant. This letter of release is necessary to comply with the provisions of Pekeliling Perkhidmatan Bilangan 12 Tahun 2008 Dasar dan Prosedur Pelantikan Secara Peminjaman, Pertukaran Sementara dan Pertukaran Tetap. [48] Part VII of the relevant circular makes provision for the permanent appointment of a serving officer on secondment to the post held by him at the agency where he is seconded. Paragraph 56 in particular, states that the approvals of 3 parties is necessary for the transfer, namely the officer himself, the agency where he is seconded and his substantive agency. [49] As PSC was the relevant Appointing Authority of the Plaintiff, and the body responsible for the general administration of the Plaintiff’s service, the Auditor General sought approval of PSC. PSC then gave its approval for the release of the Plaintiff to be appointed to the 2nd Defendant. [50] The Plaintiff is misconceived to think that by PSC’s approval, all necessary procedures had been completed and that he can be deemed appointed the day following PSC’s letter of 30.8.2018. [51] He appears to have overlooked the Auditor General’s letter of 17.10.2018 to the 1st Defendant to furnish the following letters:-

the Plaintiff’s letter of resignation to the Auditor General within 30 days of issuance of the 2nd Defendant’s offer letter of appointment;

the 2nd Defendant’s letter of offer appointing the Plaintiff to a permanent post;

the consent of the Plaintiff to the 2nd Defendant’s offer; and

the terms of service of the said permanent appointment. [52] These documents are not mere formalities. To appoint the Plaintiff, the 2nd Defendant has to first issue a formal letter of offer, to which the Plaintiff must signify his acceptance to. These are essential pre-requisites, stipulated in the flow chart under paragraph 58 of Pekeliling Perkhidmatan Bilangan 12 Tahun 2008. [53] The Plaintiff is then obliged to tender his resignation to the Auditor General within 30 days from the date of the 2nd Defendant’s letter of offer, in the format required under the relevant service circular applicable to the Plaintiff. These documents are therefore necessary to complete the process of the Plaintiff’s permanent appointment with the 2nd Defendant. This can be made no clearer by the National Audit Department in its letter dated 17.10.2018. [54] It is undisputed that on 31.10.2018, when the Mesyuarat Anggota Perbadanan Pengurusan of the 2nd Defendant was held, the Plaintiff had yet to be given an offer of permanent employment with the 2nd Defendant. In fact, having deliberated on the proposal to appoint him as recommended by the Appointment Committee, the meeting decided against the recommendation. The Plaintiff was duly informed of the decision by letter dated 28.11.2018. [55] Whilst the Plaintiff cannot be faulted for harbouring hopes by the preceding chain of events, I am of the view that until and unless a letter of offer was issued and accepted by the Plaintiff, there can be no valid appointment of the Plaintiff. The documentary evidence viewed in its entirety does not allow this court to deem the appointment to have taken effect the day following the PSC’s letter of release. No order to that effect can be made. [56] Consequently, the Plaintiff’s relief for all remuneration, benefits and allowances with effect from 1.9.2018 cannot be allowed. Mode of commencement of proceedings [57] A final point which I consider necessary to deal with is the mode of commencement of proceedings adopted by the Plaintiff to file his suit. Although no objection was raised by the Defendants on the appropriateness of the Plaintiff’s suit by way of Writ, I am not precluded from considering the point. [58] I am of the view that the Plaintiff ought to have commenced his action by judicial review proceedings. [59] The authorities are replete on this point. The law was settled in Ahmad Jefri bin Mohd Jahri @ Md Johari v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 3 MLJ 145 where the Federal Court expounded on the consideration to be borne in mind. [60] The Federal Court had this to say, [21] In view of this, let us begin by first asking ourselves a preliminary question: is the appellant's complaint or grievance amenable for judicial review (before even considering whether the procedure adopted by him is appropriate). If his complaint is not amenable for judicial review then he can commence his action by writ or originating summons; there is no issue on the process. So first we have to determine the parameter of matters amenable for judicial review. It is widely accepted that not every decision made by an authoritative body is suitable for judicial review. To qualify there must be sufficient public law element in the decision made. For this, it is necessary to examine both the source of the power and the nature of the decision made; whether the decision was made under a statutory power (see para 61 [2010] 3 MLJ 145 at 157Halsbury's Laws of England (4th Ed, 2001 Reissue) Vol 1(1). ….. [61] In Majlis Perubatan Malaysia & Anor v Asia Pacific Higher Learning Sdn Bhd (registered owner and licensee of the higher learning institution Lincoln University College) [2019] 1 MLJ 471 the Court of Appeal held that it would be contrary to public policy and an abuse of process to allow an individual to impugn the decision of a public authority through an ordinary action rather than resorting to O 53 of the Rules of the High Court which provision exists for the protection of public authorities. (See also: Kelana Megah Development Sdn Bhd v Kerajaan Negeri Johor and another appeal [2016] MLJU 1649). [62] There is sufficient public law element that arises from the Plaintiff’s suit. The Plaintiff seeks reliefs against the 2nd Defendant, which is a statutory body established under The Solid Waste and Public Cleansing Management Corporation Act, 2007 [Act 673]. The issues in this case concerns the Plaintiff’s terms of service governed by the Pekeliling Perkhidmatan Bilangan 12 Tahun 2008. This court was tasked with construing the documents issued by the National Audit Department and the PSC. There were letters by the three agencies involved to be construed in order to determine the import of it. Finally, the reliefs sought, if allowed, would have implications on his service with the government and the 2nd Defendant, a statutory body. [63] I would have, on the sole ground that that Plaintiff had not commenced his action by an appropriate mode, dismissed the Plaintiff’s case. Nonetheless, having also considered the evidence adduced, I am also not persuaded that it is a meritorious claim. Conclusion [64] In the result, and premised on the foregoing reasons, I find that the Plaintiff’s case must be dismissed. As I do not consider his case to raise issues of any particular complexity, the trial having taken only one day, I order that costs of RM 2,000 be paid by the Plaintiff to the Defendants. Dated : 16th October 2023 -SGD- ...………………..….... Alice Loke Yee Ching Judge High Court of Malaya at Shah Alam Counsel for the Plaintiff : Mr. Muhamad Murtayza b. Mohd Mokhtar Tetuan Hasif Azham Rizal & Co. Counsel for the Defendants : Ms. Nurul Suzilyana bt. Mohamed Saat Tetuan Suzilyana & Co.