Noor Bhayzura Binti Dali v 1. ) Suruhanjaya Perkhidmatan Awam Malaysia (WA-25-233-09/2017)

1.

KERAJAAN MALAYSIA ... RESPONDEN-RESPONDEN Grounds of Decision Azizah Nawawi, J Application [1] This is an application for judicial review under Order 53 Rules of Court 2012 (the “ROC 2012”) seeking the following reliefs: -

An order of certiorari to quash the decision of the 1st Respondent (“SPA”) dated 9.6.2017, dismissing the applicant from service with effect from 24.5.2017 (“decision”);

(ii) A declaration that the said decision is null and void; 3

(iii) An order of mandamus to reinstate the applicant as a „Pegawai Tadbir dan Diplomatik Gred 44 (Memangku)‟ together with the remunerations that she was entitled to and to delete all records pertaining to the said decision; and

(iv) General and exemplary damages. [2] Having considered the application, this Court had dismissed the application with costs. The Salient Facts [3] The applicant was employed as a PTD officer on Grade 41 on 20.12.2010. The Applicant had served in various government department and agencies until she was promoted to Grade 44 (Memangku). With effect from 2.5.2014, she was placed at „Bahagian Pengurusan Pekerja Asing‟, Kementerian Dalam Negeri (“KDN”). [4] However, the applicant did not report for duty on 2.5.2014. Subsequently, the applicant failed to come to work on the following dates for a total of 79 days, and the details are as follows: 2014 May 2,14,15,19,21,22,23,26,27 and 28 June 4,5,10,11,16,17,18,19,20,23,27 and 30 July 1 - 31 August 1,4,5,6,7,8,11,12,13,14,15,18,19,20,21 2016 4 July 18 August 19, 29 September 6,7,21,23 October 4,25 November 21 December 27 [5] The applicant was then referred to the „Pengerusi Lembaga Tatertib Kumpulan Pengurusan (No. 2), KDN‟ to ascertain the seriousness of the allegation of misconduct committed by the applicant. [6]

judicial review applies to any body of persons having legal authority derived from public law to determine questions affecting the rights of subjects whether that right is derived from statute or from the common law;

the High Court is not a Court of Appeal from the body under review;

the High Court limits itself to determining whether the public authority or inferior 7 tribunal has acted lawfully, rationally and with due regard to proper procedures;

the court will not substitute its judgment or discretion for the judgment or discretion of the body under review;

facts determined by the body under review are rarely open to review in the High Court;

the High Court will intervene unless there is express statutory direction to the contrary;

if there is an established appeal procedure from the decision of the body under review the court usually prefers this course to be followed;

only activities of a public nature can be the subject of judicial review…” [12] Bearing in mind the above principles, the disciplinary charges against the applicant is premised on regulation 4 (2) (g) and (i) of the 1993 Regulations, which reads: “(2) An officer shall not-

be irresponsible; 8

be insubordinate or conduct himself in any manner which can be reasonably construed as being insubordinate;” [13] The applicant is said to be irresponsible and insubordinate or conduct himself in any manner which can be reasonably construed as being insubordinate because she was found to have been absent from duty for 79 days in the year 2014 and 2016. Regulation 23 of the 1993 Regulations reads: “23. Absence from duty In this Part, "absence", in relation to an officer, includes a failure to be present for any length of time at a time and place where the officer is required to be present for the performance of his duties.” (emphasis added) [14] From the charge itself, the applicant was found to be absent from duty for 79 days in the year 2014 and 2016. [15] The applicant had given a lengthy explanation in her letter of representation dated 7.4.2017 with regards to the reasons as to why she had failed to come to the office. The applicant did not dispute the fact that she was absent from work as per the disciplinary charges. However, she explained that there were many reasons for her absence, including the demise of her father, her marital problems and other health problems affecting her children. It is the submission of the applicant that the reasons that she had given are reasonable. 9 [16] On administrative matters, it is not for this court to state what should be the policies of the respondent when dealing with issues such as reasons for the employees‟ absence from work. The respondents would be in a better position to deal with such administrative matters. It is not for this court to decide if the reasons given are reasonable and/or acceptable. In Public Service Commission Malaysia & Anor v Vickneswary a/p RM Santhivelu (substituting M Senthivelu a/l Marimuthu, deceased) [2008] 6 CLJ 573, TunZaki CJ held at page 595C: “[44] From these GOs, it can be clearly concluded that it is the disciplinary authority and not the court who is to decide whether the officer in his written representation has exculpated himself. The answer to Question (iii) must therefore be answered in the negative ie, that it is not the court but the disciplinary authority who is to decide this question of whether he has exculpated himself by his written representation.” (emphasis added) [17] However, the applicant takes the position that the SPA has failed to comply with regulations 24, 25 and 26(1) of the 1993 Regulations. Regulation 24 is an enabling provision to take disciplinary action where the employee is absent from work. Regulation 25 outlines the procedures to be taken, in that the „Ketua Jabatan‟ is to make a report on the employee‟s absence from work to the relevant „Pihak Berkuasa Tatatertib‟. 10 [18] In the present case, the respondents have averred that the procedure in regulation 25 had been complied with, as can be seen from paragraph 15.1 of the affidavit affirmed by Tuan Ruslan bin Tuan Mat on 10.11.2017, where the deponent had affirmed that the Ketua Jabatan had reported the applicant‟s breach pursuant to the 1993 Regulations to the „Pihak BerkuasaTatatertib‟. [19] The applicant had relied on the case of Zulkifli bin Muhammad Hanafiah v Suruhanjaya Perkhidmatan Pelajaran & Ors [2016] MLJU 766 for the proposition that there must be compliance with regulation 26(1) of the 1993 Regulations, which provides for “Prosedur jika pegawai tidak hadir tanpa cuti dan tidak dapat dikesan”. [20] However, I am of the considered opinion that the factual matrix of Zulkifli’s case is different from the present case. In Zulkifli’s case, the employee was suspended from work from 25.4.2005 to 13.11.2009, and the disciplinary charges of being absent from work covers the period of the suspension. Added to that, unlike the long period of absence of Zulkifli from work (about 4 years) due to the suspension order, the applicant herein was not „tidak dapat dikesan‟, but was absent on random days and returned to work on certain days. Thus, there is no issue of the applicant being „tidak dapat dikesan‟, in order to trigger the application of regulation 26(1) of the 1993 Regulations. [21] Another issue raised by the applicant is that she was not given an oral right of hearing. However, the Federal Court in Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & 11 Anor v Utra Badi K Perumal [2001] 2 CLJ 525 has settled the issue that there is no necessity to give an oral hearing, and that the requirement of fairness and natural justice is satisfied by giving an opportunity to make written representations under the General Order (1993 Regulations). [22] On the issue of condonation, I agree with the respondents that this is not a pleaded ground of judicial review. The only grounds pleaded by the applicant are illegality and procedural impropriety. In Musa bin Keran v. Public Service Commission Malaysia [1995] 4 MLJ 451, the Court held that it will not allow the applicant to rely on any grounds not set out in the statement under Order 53 rule 3(2) of the ROC, 2012. Conclusion [23] Premised on the reasons enumerated above, I am of the considered opinion that there is no merit in the application and the same is dismissed with cost. (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2) KUALA LUMPUR Dated: July 2019 12 For the Applicant: Mohd Khairul Azam bin Abdul Aziz/Dato‟ Shaharudin Bin Ali Tetuan Azam Aziz Shaharudin Ali & Co. For the 1st & 2nd Respondent: SFC, Pn. Muzila bt. Mohamed Arsad Jabatan Peguam Negara, Putrajaya Cases referred:

T. Ganeswaran v Suruhanjaya Polis DiRaja Malaysia & 1 lagi [2005] 3 CLJ 302

Public Service Commission Malaysia & Anor v Vickneswary a/p RM Santhivelu (substituting M Senthivelu a/l Marimuthu, deceased) [2008] 6 CLJ 573

Zulkifli bin Muhammad Hanafiah v Suruhanjaya Perkhidmatan

Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utra Badi K Perumal [2001] 2 CLJ 525

Musa bin Keran v. Public Service Commission Malaysia [1995] 4