Nor Azlinda Binti Mohd Abdullah v Jawatankuasa Tatatertib Kumpulan Bukan Eksekutif (Jktkbe) Tabung Haji (WA-25-351-10/2023)

JAWATANKUASA TATATERTIB KUMPULAN BUKAN

JAWATANKUASA RAYUAN TATATERTIB KUMPULAN

LEMBAGA TABUNG HAJI ... RESPONDENTS

This was an application for judicial review by the Applicant against the decision by the Respondents which resulted in her dismissal.

After having considered the cause papers and oral and written submissions by the parties, this Court found that the Applicant had failed to establish the grounds of application for judicial review as per the Statement pursuant to O. 53, r. 3(2) of the Rules of Court 2012 (encl. 2) and therefore the application was dismissed.

These are my full grounds of judgment.

On 31.3.2003, the 3rd Respondent (‘R3’) offered the Applicant the post of “Pegawai Kerani (K7) (Kontrak)” for a period of two years commencing from 3.4.2003.

Thereafter, vide the letter dated 29.7.2003, the Applicant was offered permanent employment with R3 commencing from 1.8.2003.

The Applicant’s last position before she was dismissed was as a Clerk (Grade E2) at the Administration and Finance Branch, Human Capital Department, Kuala Lumpur with a monthly salary of RM4,326.26, inclusive of all allowances.

R3 is a statutory body governed by the Tabung Haji Act 1995 [Act 535] (‘THA 1995’). R3’s primary activities include pilgrimage management, savings and investment.

The 1st Respondent (‘R1’) is a committee formed pursuant to the Tabung Haji (Disciplinary Committees And Disciplinary Appeal Committees) Regulations 2010. R1 has jurisdiction over all matters relating to the conduct and discipline of R3’s non-executive employees.

The 1st Respondent (‘R2’) is also a committee formed pursuant to the same Regulations and it has the power to receive, consider and determine any appeal submitted by an employee against the decision of R1.

In June 2022, a police report was lodged by Sabtu Bin Wahab, one of R3’s account holders, alleging that the Applicant had erroneously credited a sum of money into his account on 13.5.2022.

11.

Upon completion of the investigation, the Applicant was released and the case was classified as “No Further Action”.

Thereafter, the Applicant claimed that she suffered from severe mental trauma which adversely affected her health. On 17.2.2023, the Psychiatric Clinic at Mahkota Medical Centre, Melaka diagnosed that she was suffering from acute stress disorder.

Following an investigation conducted by R3 on the said complaint by the account holder, R3 issued the Applicant with a “Surat Pertuduhan” dated 22.11.2022 (‘1st Disciplinary Action’) which reads, among others, as follows: “2. Dimaklumkan bahawa Surat Pertuduhan ini dikeluarkan ke atas puan berdasarkan Peraturan 37, Peraturan-Peraturan Tatatertib Tabung Haji 2010, berhubung Pelanggaran Prosedur Urusan Simpanan Wang.

Sehubungan itu, satu laporan untuk mengambil tindakan tatatertib dan penentuan jenis tindakan (laporan penentuan) ke atas puan telah dikemukakan kepada Pengerusi Jawatankuasa Tatatertib Kumpulan Bukan Eksekutif (JKTKBE) TH.

Setelah meneliti dan menimbangkan laporan penentuan tersebut, maka pada 25 Oktober 2022, Pengerusi JKTKBE TH telah bersetuju dan memutuskan bahawa pertuduhan ke atas puan ini adalah daripada jenis kesalahan yang jika sabit kesalahan, boleh dikenakan tindakan tatatertib dengan hukuman Buang Kerja Atau Turun Pangkat selaras dengan Peraturan 37, Peraturan-Peraturan Tatatertib Tabung Haji 2010. PERTUDUHAN Bahawa Puan, Nor Azlinda binti Mohd Abdullah … Gred E2, Kerani, semasa berkhidmat di TH Cawangan Merlimau, Puan telah didapati:

5.1 Pada 13 Mei 2022, di TH cawangan Merlimau, telah gagal memastikan ketulenan wang tunai dimesin kira wang sewaktu menguruskan transaksi tambahan tunai kaunter untuk pendeposit, Sabtu bin Wahab … Dengan perbuatan tersebut, puan telah melanggar Aturan 6.5, Tambahan Tunai Kaunter, SOP/JP/P/02, Prosedur Urusan Simpanan Wang.

5.2 Pada 13 Mei 2022, di TH cawangan Merlimau, telah gagal memasukkan denominasi wang tunai RM100 yang diterima daripada Sabtu bin Wahab ke dalam Sistem Green Screen sewaktu menguruskan transaksi tambahan tunai beliau di kaunter. Dengan perbuatan tersebut, puan telah melanggar Aturan 6.5, Tambahan Tunai Kaunter, SOP/JP/P/02, Prosedur Urusan Simpanan Wang.

5.3 Perbuatan puan adalah jelas bertentangan dengan Peraturan 5 (2) (b) (c) (ii), (d), (f), (g) dan (i). Peraturan-Peraturan Tatatertib TH 2010 yang memperuntukkan bahawa:- 5(2) Seseorang pekerja tidak boleh:-

berkelakuan dengan sedemikian cara yang mungkin menyebabkan kepentingan peribadinya bercanggah dengan kewajipannya kepada

berkelakuan dengan apa-apa cara yang mungkin menyebabkan syak yang munasabah bahawa-

(ii) dia telah menggunakan kedudukannya sebagai seorang pekerja Lembaga bagi faedahnya sendiri;

berkelakuan sedemikian cara sehingga memburukkan atau mencemarkan nama Lembaga;

tidak jujur atau tidak amanah;

tidak bertanggungjawab; dan

ingkar perintah atau berkelakuan dengan apa-apa cara yang boleh ditafsirkan dengan munasabah sebagai ingkar perintah; …” (hereinafter referred to as the ‘1st Charge’).

The Applicant submitted a six-paged representation letter in response to the 1st Charge on 2.12.2022.

By way of the letter dated 20.1.2023, R1 informed the Applicant of, among others, the following: “2. Dimaklumkan bahawa Mesyuarat Jawatankuasa Tatatertib Kumpulan Bukan Eksekutif TH (JKTKBE) Bil. 01/2023 yang bersidang pada 17 Januari 2023, setelah menimbangkan semua fakta, keadaan dan beratnya kesalahan yang telah puan lakukan, telah memutuskan bahawa puan dikenakan hukuman TURUN GAJI berkuatkuasa 17 Januari 2023.

Dengan berkuatkuasanya hukuman ini, puan:

3.1 Turun Gaji sebanyak 3 kenaikan gaji;

3.2 Tidak layak menerima bonus dalam tahun keputusan hukuman (bayaran bonus dalam tahun 2023);

3.3 Tidak layak menerima Kenaikan Gaji Tahunan (KGT) bagi dan dalam tempoh hukuman berkuatkuasa iaitu KGT bagi tahun 2023, 2024 dan 2025; (Nota: KGT akan dibayar semula pada tahun 2026 berdasarkan penilaian prestasi pada tahun 2025)

3.4 Tempoh tidak layak dinaikkan pangkat/bertugas di Tanah Suci adalah tiga puluh enam (36) bulan/1 urusan mana yang terkemudian;

3.5 Hilang kekananan selama tempoh hukuman berkuat kuasa; dan

3.6 Tempoh hukuman adalah dari tarikh berkuat kuasa mulai 17 Januari 2023 sehingga 16 Januari 2026.

Puan boleh mengemukakan rayuan secara bertulis melalui Ketua Jabatan puan kepada Jawatankuasa Tatatertib TH dan rayuan puan hendaklah dikemukakan dalam tempoh empat belas (14) hari dari tarikh surat ini diterima. Sekiranya rayuan bertulis tersebut tidak diterima dalam tempoh yang ditetapkan itu, puan adalah dianggap sebagai tidak hendak membuat rayuan dan keputusan JKTKBE Bil. 01/2023 bertarikh 17 Januari 2023 adalah dikekalkan.

Dengan berkuatkuasanya keputusan JKTKBE ini, maka puan dikehendaki melaporkan diri untuk bertugas seperti maklumat berikut: Tarikh Lapor Diri : 25 Januari 2023 Tempat Bertugas : Lantai 26, Jabatan Modal Insan Ibu Pejabat Tabung Haji Waktu Lapor Diri : 8.00 pagi …”.

On the same date (20.1.2023), R3 issued a letter to the Applicant instructing her to report for duty at R3’s Headquarters in Kuala Lumpur on 25.1.2023.

Vide e-mail dated 2.2.2023, the Applicant enclosed her letter of appeal to R2 dated 1.2.2023 against R1’s decision.

By the letter dated 14.3.2023, the Applicant was informed that R2 had convened on 9.3.2023 and decided to maintain the punishment meted out against her.

Meanwhile, what transpired was a series of correspondence between the Applicant and R3 as seen in exhibits “LTH-9” to “LTH-23” in the Respondents’ Affidavit In Reply (‘AIR’, encl. 20). Basically, the Applicant had given several reasons for not being able to report for duty on 25.1.2023 and R3 then instructed the Applicant to report for duty on 7.2.2023.

The Applicant alleged that she was unable to comply with the directive because, on 7.2.2023 and 8.2.2023, she had to accompany her husband for medical treatment at the Military Hospital in Melaka and her child was also having health issues. The Applicant submitted an appeal to R3 on 6.2.2023 for the Transfer Order to be reconsidered and for her to remain in the Melaka office.

On 8.2.2023, R3 sent an e-mail to the Applicant regarding her failure to report for duty on 7.2.2023 without leave or obtaining R3’s permission. R3 was put to notice that, if she failed to report for duty on 13.2.2023, R3 will deem that she has no intention to continue in her employment and the necessary disciplinary action will be taken against her.

The Applicant was informed on 10.2.2023 that her appeal against the Transfer Order was dismissed.

On 12.2.2023, the Applicant e-mailed to inform R3 that she will not report for duty on 13.2.2023 as she has to seek treatment at the hospital for diabetes and that “Bukti boleh dikemukakan jika perlu”.

Vide the e-mail on 18.2.2023, the Applicant’s husband informed R3 that the Applicant had obtained two medical certificates for the period from 15 to 16 February 2023 and 17 February to 3 March

R3 then issued a letter dated 28.2.2023 to the Applicant stating that, as her sick leave will end on Friday, 3.3.2023, she was required to report for duty on 6.3.2023 at R3’s Headquarters, Kuala Lumpur.

This was followed with a second “Surat Pertuduhan” dated 31.3.2023 (‘2nd Disciplinary Action’) which reads, among others, as follows: “2. Dimaklumkan bahawa Surat Pertuduhan ini dikeluarkan ke atas puan berdasarkan Peraturan 37, Peraturan-Peraturan Tatatertib Tabung Haji 2010 (termasuk pindaan), berhubung kegagalan puan mematuhi arahan sah untuk melapor diri untuk hadir bertugas di Jabatan Modal Insan (“JMI”) seperti yang diarahkan melalui surat TH bertarikh 20 Januari 2023 serta kegagalan untuk hadir bertugas tanpa cuti atau tanpa terlebih dahulu mendapat kebenaran atau tanpa sebab yang munasabah.

Untuk rekod, arahan sah perpindahan ini adalah atas keperluan operasi Lembaga Tabung Haji (“TH”) dan puan telah diarahkan untuk melapor diri di JMI pada 25 Januari 2023. Selanjutnya, setelah mempertimbangkan rayuan-rayuan yang dikemukakan puan masing-masing pada 25 Januari 2023 dan 8 Februari 2023, TH telah bersetuju supaya tarikh lapor diri puan ditangguhkan ke tarikh 7 Februari 2023 dan kemudiannya ke tarikh 13 Februari 2023. Walau bagaimanapun, pada 13 Februari 2023 puan didapati telah gagal mematuhi arahan sah untuk melapor diri di Cawangan Pentadbiran dan Kewangan, JMI seperti mana arahan dalam surat TH bertarikh 20 Januari 2023 tersebut.

Sehubungan itu, Mesyuarat Jawatankuasa Tatatertib Kumpulan Bukan Eksekutif (JKTKBE) TH Bil. 2/2023 telah bersidang pada 24 Mac 2023 dan satu laporan untuk mengambil tindakan tatatertib dan penentuan jenis tindakan (laporan penentuan) ke atas puan telah dikemukakan kepada Pengerusi JKTKBE

Setelah meneliti dan menimbangkan laporan penentuan tersebut, maka pada 28 Mac 2023, Pengerusi JKTKBE TH telah bersetuju dan memutuskan bahawa pertuduhan ke atas puan ini adalah daripada jenis kesalahan yang jika sabit kesalahan, boleh dikenakan tindakan tatatertib dengan hukuman Buang Kerja Atau Turun Pangkat selaras dengan Peraturan 37, Peraturan-Peraturan Tatatertib Tabung Haji 2010.

Butiran pertuduhan terhadap puan adalah seperti berikut:

6.1 PERTUDUHAN Bahawa Puan, Nor Azlinda binti Mohd Abdullah … Kerani (Gred E2) di Cawangan Pentadbiran dan Kewangan, Jabatan Modal Insan TH didapati telah:

6.1.1 Pada 13 Februari 2023, gagal mematuhi arahan sah untuk melaporkan diri untuk bertugas sebagai Kerani (Gred E2) di Cawangan Pentadbiran dan Kewangan, Jabatan Modal Insan di Ibu Pejabat Lembaga Tabung Haji seperti mana arahan dalam surat TH bertarikh 20 Januari 2023. a) Perbuatan Puan adalah jelas bertentangan dengan Peraturan 5(2)(i) Peraturan-Peraturan Tatatertib Tabung Haji 2010 yang memperuntukkan bahawa: “5 (2) Seseorang pekerja tidak boleh:-

ingkar perintah atau berkelakuan dengan apa-apa cara yang boleh ditafsirkan dengan munasabah sebagai ingkar perintah.”

6.1.2 Pada 13 Februari 2023 dan 14 Februari 2023, gagal untuk hadir bertugas di Cawangan Pentadbiran dan Kewangan, Jabatan Modal Insan di Ibu Pejabat Lembaga Tabung Haji tanpa cuti atau tanpa terlebih dahulu mendapat kebenaran atau tanpa sebab yang munasabah. a) Perbuatan Puan sedemikian adalah merupakan salah laku selaras dengan Peraturan 24 dan Peraturan 25 Peraturan-Peraturan Tatatertib Tabung Haji 2010 yang memperuntukkan bahawa: “Tidak hadir untuk bertugas

Dalam Bahagian ini, “tidak hadir”, berhubung dengan seseorang pekerja termasuklah tidak hadir bagi apa-apa jua tempoh masa pada masa dan di tempat pekerja itu dikehendaki hadir bagi pelaksanaan tugas-tugasnya. Tindakan tatatertib kerana tidak hadir tanpa cuti

Ketidakhadiran untuk bertugas oleh seseorang pekerja tanpa cuti atau tanpa terlebih dahulu mendapat kebenaran atau tanpa sebab yang munasabah boleh menyebabkan dia dikenakan tindakan tatatertib.” …” (hereinafter referred to as the ‘2nd Charge’).

The Applicant submitted a preliminary objection to the 2nd Charge via e-mail dated 31.3.2023 to which R3 responded on 7.4.2023 denying the Applicant’s accusation of “wujudnya unsur penganiayaan atau sebarang ‘constructive dismissal’”.

The Applicant then submitted a seven-paged representation letter in response to the 2nd Charge on 14.4.2023 wherein she explained the reasons for her failure to report for duty on 13.2.2023, including the following:

that on 13.2.2023 and 14.2.2023, the Applicant had a medical appointment at the hospital and all her children were unwell. On 15.2.2023, the Applicant was issued a medical certificate; and

the above reasons were conveyed via e-mail and through telephone calls made to the officer in R3’s Industrial Relations Division of the Human Capital Department and to the Chief Human Capital Officer on 13.2.2023 and 14.2.2023.

On 12.4.2023, R3 approved the Applicant’s application for unpaid leave in the following words: “Merujuk kepada permohonan puan, sukacita dimaklumkan pihak pengurusan TH telah meluluskan permohonan Cuti Tanpa Gaji Peribadi bertujuan untuk memberi tumpuan terhadap masalah kesihatan mulai 13 April 2023 hingga 14 Mei 2023 iaitu sebanyak tiga puluh dua (32) hari termasuk Cuti Am/Umum dengan tarikh lapor diri semula pada 15 Mei 2023 (Isnin) dan kembalikan Borang Lapor Diri ke Bahagian Operasi Modal Insan untuk dikemaskini.”.

By way of R1’s letter dated 12.5.2023, the Applicant was informed of the following: “2. Dimaklumkan bahawa Mesyuarat Jawatankuasa Tatatertib Kumpulan Bukan Eksekutif TH (JKTKBE) Bil. 03/2023 yang telah bersidang pada 12 Mei 2023, setelah menimbangkan semua fakta, keadaan dan beratnya kesalahan yang telah puan lakukan, mendapati bahawa puan telah gagal membebaskan diri daripada pertuduhan yang telah dikemukakan.

JKTKBE TH Bil. 03/2023 bertarikh 12 Mei 2023 telah memutuskan bahawa puan dikenakan hukuman Buang Kerja berkuatkuasa 12 Mei 2023. ….”.

The Applicant submitted a five-paged letter of appeal on 24.5.2023. However, on 7.8.2023, R2 decided to uphold the dismissal imposed by R1.

This led to the instant application for judicial review to seek, among others, the following reliefs:

a declaration that the decision by –

R1 dated 12.5.2023 in terminating the Applicant’s service and dismissing the Applicant from employment is null and void; and

(ii) R2 dated 4.8.2023, which upheld R1’s decision in relation to the Applicant’s appeal against the dismissal, is null and void;

an order of certiorari to quash the decision by –

R1 dated 12.5.2023 which dismissed the Applicant from employment; and

(ii) R2 dated 4.8.2023 which upheld R1’s decision;

an order of mandamus directing R3 to reinstate the Applicant to her position with R3 at the same rank and salary scale as held immediately prior to her dismissal;

an order that R3 shall pay compensation equivalent to the Applicant’s monthly salary for the period during which the Applicant was dismissed until the Judicial Review Order is granted, within 14 days from the date of the order;

alternatively, in the event that reinstatement is not possible, an order that R3 shall pay specific compensation equivalent to 24 months’ salary based on the Applicant’s last drawn monthly salary, within 14 days from the date of the order;

an order for specific compensation equivalent to the Applicant’s monthly salary calculated in proportion to the Applicant’s period of service, within 14 days from the date of the order; and

general damages to be assessed for the losses suffered by the Applicant as a result of the dismissal.

The legal principles which can be discerned from the case authorities as cited by the parties in the instant application may be summarised as follows:

judicial review is not an appeal from a decision but a review of the manner in which the decision was made. The High Court does not sit in its appellate jurisdiction, but rather, in its supervisory jurisdiction. The Court is more concerned with the decision-making process and not the decision itself. The Court is not entitled on an application for judicial review to consider whether the decision itself, on the merits of the facts, was fair and reasonable. The Court is merely to quash the decision of the relevant authority, if required, and not to substitute the decision with what it thinks is the correct decision [see Harpers Trading (M) Sdn Bhd v National Union Of Commercial Workers [1991] 1 MLJ 417 (SC), Michael Lee Fook Wah v Menteri Sumber Tenaga Manusia Malaysia & Anor [1998] 1 CLJ 227 (CA) and Ketua Pengarah Hasil Dalam Negeri v Alcatel-Lucent Malaysia

the question to be considered is whether a reasonable tribunal similarly circumstanced would have come to a like decision on the facts before it. The court is not to review findings of fact based on the credibility of witnesses [see William Jacks & Co (M) Sdn Bhd v S Balasingam [1997] 3 CLJ 235 (CA)].

In Abd Razak Atan v Dato Hj Ahmad Raghib Hj Mohd Salleh & 2 Ors [2010] 6 CLJ 887, Low Hop Bing JCA in delivering the judgment of the Court said: “[9] In determining whether to quash or declare a decision as wrong in law, null and void, it is only necessary for the court to consider whether, in dismissing a public officer, the DA had failed to observe the rules of natural justice; apply the Wednesbury principles of unreasonableness; or failed to understand correctly the law that regulates his decision-making power, and give effect to it. The grounds for judicial review may be compendiously classified under three heads viz 'procedural impropriety', 'irrationality' and 'illegality': See Ghazi Mohd Sawi v. Mohd Haniff Omar, Ketua Polis Negara, Malaysia & Anor [1994] 2 CLJ 333, 342 per Mohd Jemuri Serjan CJ (Borneo), applying the principles enunciated by Lord Diplock in Council of Civil Service Union v. Minister of Civil Service [1985] AC 374, 410 HL.”.

The Applicant submitted that the Respondents’ decision in imposing the punishment of dismissal against the Applicant was tainted by irrationality and procedural impropriety.

The Applicant’s pleaded grounds of challenge as set out in the Statement (encl. 2) were that R1 and R2 had –

erred and failed to consider all the facts in deciding to dismiss the Applicant due to her absence on 13 and 14

erred in dismissing the Applicant by failing to consider that the Applicant had a reasonable excuse for her absence on 13 and 14 February 2023;

failed to consider that R3 had changed the Applicant’s date to report for duty from 13.2.2023 to 15.5.2023 by approving her unpaid leave application; and

failed to consider the correspondence from the Applicant and her supporting documents in their deliberations during the Applicant’s disciplinary proceedings. Analysis and Findings 1st Ground: Whether the Respondents’ decision was tainted by irrationality

In TR Eri Ak Ajok v District Officer of Simunjan & Ors [2013] 1 MLJ 426, the meaning of “irrationality” was described in the following words: “I am moved to reproduce the same excerpt from Lord Diplock’s judgment which was quoted by His Lordship at p 187 of the report in respect of criteria (b), pertinent in my view to the matters at hand: By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’ (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the courts’ exercise of this role, resort I think is today no longer needed to Viscount Radcliffe’s ingenious explanation in Edwards v Bairstow [1956] AC 14, or irrationality as a ground for a court’s reversal of a decision by ascribing it to an inferred though undefinable mistake of law by the decision maker. ‘Irrationality’ by now can stand on its own feet as an accepted ground on which a decision may be attacked by judicial review. (Emphasis added.) The principle of Wednesbury reasonableness was also applied by the Federal Court in Pengarah Tanah Dan Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135. Although the main ratio in Rama Chandran’s case is in respect of the court’s power in a judicial review in relation to an award by the Industrial Court, the criteria mentioned above are observations made in relation to the general powers of the court for this kind of remedy. In addition to the above, there is sufficient case authorities in support of the statement that in an application for judicial review the court can examine the decision making process or the manner in which the decision is made, although not so much the merit of the decision (see the two Court of Appeal decisions of Ta Wu Realty Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri & Anor [2009] 1 MLJ 555 and Holiday Villages of Malaysia Sdn Bhd v YB Menteri Sumber Malaysia & Anor [2009] 6 MLJ 402, both cases cited to me by Mr Saferi Ali). The phrase ‘decision making process’ in my view does not end when the decision is made. It ought to extend and should cover the administrative acts done up to the time when the decision is conveyed to the applicant. I must therefore now examine it in order to ascertain if it falls within the criteria of irrationality which I have quoted above.”.

Regulation 5(2)(i), 24 and 25 of the Tabung Haji Disciplinary Regulations 2010 (‘2010 Regulations’) provide as follows: “General

…

An employee shall not – …

be insubordinate or conduct himself in any manner which can be reasonably construed as being insubordinate; and … … Absence from duty

In this Part, “absence”, in relation to an employee, includes a failure to be present for any length of time and place where the employee is required to be present for the performance of his duties. “Disciplinary action for absence without leave

An employee’s absence from duty without leave or without prior permission or without reasonable cause shall render him liable to disciplinary action.”.

The Applicant submitted that –

the 2nd Charge was premised on the Applicant’s absence from duty on 13.2.2023 and 14.2.2023 when the Applicant had duly communicated to R3’s officer via e-mail and telephone call that she had medical appointments at the hospital. In the circumstances, the Applicant should not to be categorised as an employee who was absent without reasonable cause as the absence was health-related and was substantiated by credible documentary evidence. The allegation of insubordination under Regulation 5(2)(i) of the 2010 Regulations was inapplicable;

Regulations 24 and 25 of the 2010 Regulations were similarly inapplicable and the decision to impose disciplinary action on the Applicant under these provisions was irrational as R3 failed to take into account the evidence and justification presented by the Applicant;

the decision to proceed with the 2nd Charge was irrational when viewed in light of the fact that R3 was fully aware that the Applicant was unable to report for duty on 13.2.2023 and 14.2.2023 and the Applicant was covered by a valid medical certificate thereafter. The Respondents failed to consider the Applicant’s long-standing tenure of nearly 20 years with R3;

she had sought assistance on how to apply for leave given that access to the internal leave application system had been revoked, which compelled her to utilise alternative means of communication such as e-mail and telephone calls. All the e-mails were unanswered by R3;

R3 made a U-turn when it altered the Applicant’s reporting date to 6.3.2023 upon receiving the Applicant’s medical certificate. Subsequently, on 12.4.2023, R3 approved the Applicant’s application for unpaid leave and issued a new instruction for the Applicant to report for duty on 15.5.2023. Accordingly, the 2nd Charge alleging insubordination on the part of the Applicant was rendered null and void as R3 had issued a subsequent and superseding instruction requiring the Applicant to report for duty on 15.5.2023; and

the punishment imposed was disproportionate to the alleged misconduct (see Yahaya Talib v Southern Bank Bhd & Anor [2009] MLJU 1864 where the court referred to Rameshbai Atmaram Patel v. Factory Manager, New Shorrock Mills Ltd [2001] 111 LLJ (suppl.) 723). In the Applicant’s case, the punishment of dismissal for two days of absence was wholly disproportionate when viewed in light of the Applicant’s 20 years of service. The punishment of dismissal was not meted out with the intention of disciplining the Applicant, but rather, it was executed in a vindictive manner with the sole objective of terminating the Applicant’s employment. The punishment for the 1st Charge was, in reality, a veiled attempt to dismiss the Applicant from employment. When the issue of the Applicant’s absence arose, the Respondents seized the opportunity to dismiss the Applicant, despite knowing that there were reasonable grounds for the Applicant’s non-attendance on both dates in question (see Ngiam Geok Mooi v Pacific World Destination East Sdn Bhd [2016] 2 MLJ 741).

I have given careful consideration to the Applicant’s submission and my findings are set out below:

Where a transfer order has been issued, an employee is obliged to obey that order first, despite any protest he may have. This, the Applicant had failed to do. In Nestle Products Sdn Bhd v Mahkamah Perusahaan Malaysia [2013] 4 ILR 263 it was held that: “[25] While an employee who was dissatisfied with a transfer order may lodge appeal, such action does not in itself negate the transfer order and excuse the employee from complying with the order. [26] The applicant had considered the appeal and decided R2 had to go on transfer. R2 is therefore obliged to comply with the transfer order. [27] R2’s failure to comply with the applicant’s transfer order and his refusal, was a wilful disobedience to a lawful and reasonable order.” (see too, Sunway University College v Mahkamah Perusahaan Malaysia & Anor [2019] 7 CLJ 55). R3 had accommodated the Applicant’s request to postpone her transfer twice, from 25.1.2023 to 7.2.2023 and then to 13.2.2023. It was evident from the Applicant’s correspondence with R3 that she had no intention of complying with the Transfer Order, as she had, by leveraging on R3’s leniency time and time again, requested for the Transfer Order to be reconsidered by R3. The latitude offered to the Applicant to report for duty shows that R3 had, in fact, acted rationally and in a considerate manner towards the Applicant. However, despite the opportunity and latitude afforded by R3 to the Applicant, the Applicant continued to refuse to obey the lawful and valid Transfer Order.

Based on the affidavit evidence, the Applicant had clearly failed to apply for leave beforehand or produce valid supporting evidence to justify her absence on 13 and 14 February 2023. The Applicant only produced her medical certificate for the other time periods. Although the Applicant did inform R3 that she would not be reporting for duty on 13.2.2023 vide her e-mail dated 12.2.2023, she failed to produce any supporting documents thereafter to R3 to substantiate her claim that she had sought treatment at the hospital on 13.2.2023. The Applicant proffered no reason for her absence on 14.2.2023.

As regards the Applicant’s contention that R3 failed to respond to her e-mails dated 8 and 10 February 2023, R3 had replied to the 8.2.2023 e-mail on 10.2.2023 by informing the Applicant that her reasons for refusing to comply with the Transfer Order cannot be accepted and she must apply for leave in accordance with the proper procedure before she could be absent from work. R3’s employee, Puan Khairunisah Abd Ralim had tried to contact the Applicant vide telephone on 13.2.2023 to enquire about her absence on that day but there was no answer. Subsequently, the Applicant contacted Puan Khairunisah to inform her that she would not be reporting to work on that day. Puan Khairunisah then instructed the Applicant to submit the supporting documents to explain her absence via e-mail. However, it was only vide e-mail dated 18.2.2023 from the Applicant’s husband that R3 was informed that the Applicant had obtained medical certificates for the period between 15.2.2023 to 3.3.2023. There was no supporting document to explain the Applicant’s absence on 13 and 14 February 2023.

R3 did not make a U-turn by changing the Applicant’s reporting date from 13.2.2023 to 6.3.2023 and thereafter to 15.5.2023. R3’s instruction for the Applicant to report for duty on 6.3.2023 was due to the fact that she had a valid medical certificate to explain her absence for the period between 15.2.2023 to 3.3.2023. Thereafter, the Applicant also provided her medical certificate for the period between 2.3.2023 to 6.4.2023. R3 had then instructed the Applicant to report for duty on 15.5.2023 as she had applied for leave beforehand on 4.4.2023 for the period between 7.4.2023 until 12.5.2023. The chronology of events does not in any way negate the fact that the Applicant failed to report for duty and was absent without taking leave or obtaining prior permission on 13 and 14 February 2023. R3 did not in any way condone the Applicant’s act of insubordination for failing to report for duty on these two dates since it had instituted disciplinary proceedings against the Applicant vide the Show Cause Letter on 31.3.2023. As no decision had been made by the Disciplinary Committee or Disciplinary Appeal Committee at that juncture in relation to the disciplinary proceedings against the Applicant, it was only logical for R3 to still expect the Applicant to report for duty after her medical and unpaid leave have expired after 3.3.2023 and thereafter until 12.5.2023.

As regards the Applicant’s submission that R3 had “ignored her request for help” to apply for leave as she was unable to access the system online, in the e-mail from R3 to the Applicant dated 10.2.2023, it was explained that: “3. Alasan puan tidak dapat mengambil cuti atas sebab system Thr4Us dan email TH puan telah dinyahaktifkan oleh pihak TH tidak diterima oleh JMI.

Puan boleh berhubung dengan JMI untuk memaklumkan permohonan cuti puan melalui e-mail, telefon dan mesej sebagaimana yang puan buat sebelum ini.”. Notably, the Applicant was able to apply for leave vide e-mail and had attached the manual leave form to be submitted to R3. However, she did not do so in order to excuse herself from work on 13 and 14 February 2023.

Even one act of serious misconduct could justify the dismissal of an employee, even a long-serving one. In Harianto Effendy Zakaria v Mahkamah Perusahaan Malaysia & Anor [2014] 4 ILJ 399, the court observed that “… there is no fixed rule of law to suggest that it was unreasonable to dismiss employees with unblemished records for a single instance of insolence. It depends on the nature of the misconduct.”. The 2nd Charge was not the Applicant’s first misconduct committed during her employment with R3. The punishment of dismissal meted out by R1 was provided for under Regulation 42 of the 2010 Regulations. In the final analysis, the punishment of dismissal was not disproportionate to the misconduct committed by the Applicant.

Based on the foregoing reasons, I was unable to conclude that the decisions of the Respondents in issuing the Show Cause Letter to the Applicant and subsequently dismissing her, was irrational or disproportionate. The Applicant had committed not just one, but two serious misconducts of insubordination and absence without leave, which have been held by the courts to be dismissible misconducts. 2nd Ground: Whether the Respondents’ decision was tainted by procedural impropriety

Procedural impropriety basically means that the decision-maker failed to observe basic rules of natural justice or procedural rules (see Jeremy John Figgins v Kenneison Brothers Sdn Bhd & Anor [2016] MLJU 1449).

Regulation 26 of the 2010 Regulations provides as follows: “Procedure in cases of absence without leave

26.

Where an employee is absent from duty without leave or without prior permission or without reasonable cause, his Head of Department shall, as soon as possible, report that fact together with the dates and circumstances of such absence and any further information in respect of such absence to the appropriate Disciplinary Committee.”.

The Applicant argued that, in formulating the 2nd Charge, the Respondents failed to comply with Regulation 26 of the 2010 Regulations because the proper procedure for initiating disciplinary action under Regulation 25 is stipulated in Regulation 26 whereby prior to the issuance of any disciplinary charge, the Applicant’s Head of Department must submit a report of the absence without leave together with the dates of such absence to the relevant Disciplinary Committee. No such report was exhibited in the Respondents’ AIR.

It was contended that non-compliance with Regulation 26 of the 2010 Regulations has rendered the 2nd Charge against the Applicant to be fundamentally defective, and consequently, constitutes a procedural impropriety in the decision-making process which led to the imposition of the dismissal penalty upon the Applicant.

A perusal of the Statement (encl. 2) shows that the Applicant’s contention was not pleaded and neither was it raised in her Affidavit of Support (encl. 3) for it to be addressed by the Respondents accordingly.

It is settled law that no grounds should be relied upon or any relief sought except the grounds and reliefs as set out in the Statement [see DR A Dutt v Assunta Hospital [1981] 1 MLJ (FC)]. Therefore, the Court was unable to consider the 2nd Ground as raised by the Applicant only at the written submission stage.

In the Statement, the Applicant pleaded that the Respondents did not adhere to the procedures under Regulation 37 of the 2010 Regulations.

I have closely scrutinised the affidavit evidence from the time when the Show Cause Letter pursuant to Regulation 37 of the 2010 Regulations was issued on 31.3.2023 to the time when the Applicant submitted her Representation Letter on 14.4.2023; R1 convened to consider the Applicant’s Representation Letter on 12.5.2023 and the Applicant was informed on the same day that the punishment meted out to her is dismissal; the Applicant appealed against R1’s decision 24.5.2023; and the Applicant was informed on 7.8.2023 that her appeal had been dismissed by R2 which had convened on 4.8.2023.

In my considered view, there was no procedural impropriety in the disciplinary proceedings instituted against the Applicant as it was done in line with the provisions of the 2010 Regulations and the Tabung Haji (Disciplinary Committees And Disciplinary Appeal Committees) Regulations 2010.

In the upshot, there was no merit in the Applicant’s claim that the Respondents’ decision of dismissal was tainted by procedural impropriety

Premised on the aforesaid considerations, the Applicant has failed to establish both her grounds of application for judicial review and therefore the application was dismissed with costs of RM8,000.00, subject to allocatur. DATED: 16.2.2026 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR (BKK1) Solicitors for the Applicant: Muhammad Zulfaqar Zikry Bin Wahidir Messrs. Wan Ahmad Ridzuan & Co. Solicitors for the Respondents: Sharifullah Majeed (Arissa Ahrom with him)