Rokiah binti Mhd Noor v Menteri Perdagangan Dalam Negeri, Koperasi dan Kepenggunaan Malaysia (RS 01(f)-23-07/2016(W))

Menteri Perdagangan Dalam Negeri Koperasi & Kepenggunaan Malaysia

Suruhanjaya Syarikat Malaysia

Kementerian Perdagangan Dalam Negeri Koperasi & Kepenggunaan Malaysia

Kerajaan Malaysia ... Respondents CORAM: Ahmad Maarop CJ (Malaya) Richard Malanjum CJ (SS) Zaharah Ibrahim FCJ Aziah Ali FCJ Jeffrey Tan FCJ

On the face of it, this appeal concerns only the immediate parties. But in truth, the outcome of this appeal would 2 affect all members of the public services mentioned in Article 132(1) of the Federal Constitution and all employees of statutory bodies and local authorities governed by the Statutory Bodies (Discipline and Surcharge) Act 2000 (Act 605).

The background facts could be summarised as follows. On 18.1.1980, the Appellant joined the Malaysian Civil Service, as a Trade Registration Officer of the former Ministry of Trade and Industry. On 16.4.2002, the Companies Commission of Malaysia (2nd Respondent) was established by the Companies Commission of Malaysia Act 2001 (Act 614). On the same day, the Appellant was absorbed as a permanent employee of the 2nd Respondent. A few years later, on 22.4.2008 and pursuant to section 11(4) of Act 614, the Minister appointed the Appellant as the deputy CEO of the 2nd Respondent for a term of three years, later extended to 5.12.2013. Prior to her appointment as deputy CEO, the Appellant was, since 1.7.2005, the Director of Registration Services of the 2nd Respondent. Meantime, on 30.12.2011, the Appellant accepted the option to retire at age 60, that is, on 5.12.2015, under the Statutory and Local Authorities Pensions Act 1980 (as amended).

But before the Appellant could reach 60, she was dismissed on 1.12.2012. It was not disputed that the Appellant co-authored a letter dated 25.10.2011 and entitled “Integrity and Leadership Crisis in the Companies Commission of Malaysia” that was addressed to the board of the 2nd Respondent and carbon- 3 copied to third parties including the Prime Minister, the Deputy Prime Minister, the Chief Secretary of the Government, the Minister of Domestic Trade, Co-operative and Consumerism, and the Malaysian Anti-Corruption Commission (for the contents of that letter dated 25.12.2001, see Rokiah bt Mhd Noor v Menteri Perdagangan Dalam Negeri, Koperasi & Kepenggunaan Malaysia & Ors and another appeal [2015] 11 MLJ 1). On account of her co-authorship of that letter, disciplinary action was initiated against the Appellant. On 12.4.2012, the 2nd Respondent informed the Appellant that the Disciplinary Committee (Special Cases) (hereinafter referred to as DC) received a complaint that she [Appellant] had breached Regulation 3(2)(d) or (g) of the 2nd Schedule to Act 605. The charges against the Appellant read: “(a) PERTUDUHAN Bahawa kamu, Hjh Rokiah binti Mhd Noor, No. KP 551205-03-5110, Timbalan Ketua Pegawai Eksekutlf (Operasi), semasa bertugas di Suruhanjaya Syarikat Malaysia (SSM) didapati telah berkelakuan dengan sedemikian cara sehingga mencemarkan nama SSM apabila kamu telah membuat sepucuk surat yang ditandatangani oleh kamu bertarikh 25hb Oktober 2011 bertajuk ‘INTEGRITY AND LEADERSHIP CRISIS IN THE COMPANY COMMISSION MALAYSIA’ yang telah diedar kepada pihak ketiga termasuk YAB Dato’ Sri Mohd Najib Tun Abdul Razak, Perdana Menteri Malaysia dan YAB Tan Sri Muhyiddin Mohd. Yassin, Timbalan Perdana Menteri Malaysia yang mana pernyataan-pernyataan di bawah yang terkandung di daiam surat tersebut telah mencemarkan nama dan imej SSM: 4 i. Pakatan (Conspiracy) – Perenggan 5 muka surat 4 surat tersebut … ii. MYCOID – Perenggan 5 (ii) muka surat 6 surat tersebut … iii. Pakatan (Conspiracy) – Perenggan 7 muka surat 10 surat tersebut … Oleh yang demikian perlakuan kamu ini telah melanggar Peraturan 3(2)(d), Peraturan-Peraturan Tatatertib Badan-Badan Berkanun, Bahagian II, Jadual Kedua, Akta Badan-Badan Berkanun (Tatatertib dan Surcaj) 2000 ….

(b) PERTUDUHAN PILIHAN Bahawa kamu, Hjh Rokiah binti Mhd Noor, No. KP 551205-03-5110, Timbalan Ketua Pegawai Eksekutif (Operasi), semasa bertugas di Suruhanjaya Syarikat Malaysia (SSM) didapati telah berkelakuan tidak bertanggungjawab kepada SSM apabila kamu telah membuat sepucuk surat yang ditandatangani oleh kamu bertarikh 25hb Oktober 2011 bertajuk ‘INTEGRITY AND LEADERSHIP CRISIS IN THE COMPANY COMMISSION MALAYSIA’ yang telah diedar kepada pihak ketiga termasuk YAB Dato’ Sri Mohd Najib Tun Abdul Razak, Perdana Menteri Malaysia dan YAB Tan Sri Muhyiddin Mohd. Yassin, Timbalan Perdana Menteri Malaysia yang mana dakwaan-dakwaan yang terkandung di dalam surat tersebut adalah seperti berikut: i. Pakatan (Conspiracy) – Perenggan 5 muka surat 4 surat tersebut … ii. MYCOID – Perenggan 5 (ii) muka surat 6 surat tersebut … iii. iii. Pakatan (Conspiracy) – Perenggan 7 muka surat 10 surat tersebut … 5 Oleh yang demikian perlakuan kamu ini telah melanggar Peraturan 3(2)(g), Peraturan-Peraturan Tatatertib Badan-Badan Berkanun, Bahagian II, Jadual Kedua, Akta Badan-Badan Berkanun (Tatatertib dan Surcaj) 2000.”

The 2nd Respondent called upon the Appellant to submit a written representation to exculpate herself from conduct that allegedly brought the 2nd Respondent into disrepute or brought discredit to the 2nd Respondent (principal charge) or conduct that was “irresponsible” (alternative charge). By letter dated 4.5.2012, the Appellant responded to the charges. On 21.6.2012, the DC referred the matter to the Investigation Committee. On 27.9.2012, the Investigation Committee held that the Appellant could not justify why the letter was circulated to third parties. On 31.10.2012, the DC found the Appellant guilty on both charges and recommended to the Minister, pursuant to section 8(3) of Act 605, to dismiss the Appellant from service. On 28.11.2012, the Minister notified the Appellant that her contract of service was terminated and her appointment as deputy CEO of the 2nd Respondent was revoked, both pursuant to section 11(1)(b) of Act 614 [there no such section 11(1)(b)] and with effect from 1.12.2012, – “selaras dengan seksyen 11(1)(b) Akta Suruhanjaya Syarikat Malaysia 2001 (Akta 614) saya dengan ini menamatkan kontrak perhidmatan dan membatalkan pelantikan Puan sebagai Timbalan Pengarah Eksekutif”. The Appellant was thus cashiered with nothing more than an ex gratia payment of 3 months’ wages and allowances. 6

The Appellant applied for judicial review of her dismissal. No objection was raised by the Respondents that the Appellant had not adopted the statutory appeal procedure. At the High Court, the Appellant challenged the lawfulness of her dismissal on the following grounds: defective charge; absence of proof of the elements of the charge; no investigation of the contents of the letter 25.10.2011; failure by the Minister and 2nd Respondent to consider the Whistleblower Protection Act 2010; absence of a formal complaint of her alleged misconduct; absence of procedural fairness, in that the Minister and 2nd Respondent did not give their reasons for their decision; conflict of interest, as the 2nd Respondent’s CEO, who had pushed for disciplinary action to be initiated, was also involved in the disciplinary proceeding; a pre-judgment was made on 19.11.2011 to dismiss the Appellant; parties implicated in the letter dated 25.10.2011 served in the disciplinary and or investigative committees; the case should not have been classified as under “serious punishment”; the Appellant was not informed that a prima facie case had been made out; the same punishment was not meted out to both co-authors; bias by the DC. All the same, the High Court held that the “DC had proceeded in compliance with the statutory requirements”. The application for judicial review was dismissed. The Appellant appealed to the Court of Appeal.

According to the Court of Appeal, “the main complaint of the Appellant [related] to the procedural propriety of the 7 disciplinary process”. The Court of Appeal held that there was due compliance with Regulations 32(1), 33(1), 35(1) and (2), 36(1), 37, 39, 40 of the 2nd Schedule and with section 11 of Act 614, that “CCM had followed through all the steps required by [Act 605]”, that “it could not be argued that the [High Court] was wrong in dismissing the application for judicial review”, that the DC took all relevant factors into account, that Regulations 35(1) and (2) of Act 605 could not be construed to mean that the Appellant had a right of hearing before the DC could decide on whether a prima facie case was made out, and that the Appellant was not a whistleblower within the meaning of the Whistleblower Protection Act 2010. The appeal was dismissed (for the full judgment of the Court of Appeal, see Rokiah bt Mhd Noor v Menteri Perdagangan Dalam Negeri, Koperasi & Kepenggunaan Malaysia & Ors and another appeal [2016] 8 CLJ 635).

On 13.7.2016, the Appellant obtained leave to raise the following question of law for the consideration of this court: “In a case where the [Appellant], being the Director of Registration Services Division of the Companies Commission of Malaysia was appointed under section 11 of the Companies Commission of Malaysia Act 2001 to become a Deputy Chief Executive of the Companies Commission of Malaysia for a fixed term, whether the Minister, under section 11 of the Companies Commission of Malaysia Act 2001, when revoking the fixed term appointment made by him, can concurrently terminate 8 the employment of the [Appellant] as an employee or officer of the Companies Commission of Malaysia.”

Before us, learned counsel for the Appellant argued: Section 11 of Act 614 empowers the Minister to appoint qualified persons to be the Chief Executive Officer and deputies to the Chief Executive Officer. The Appellant was appointed as deputy CEO for a fixed term. At the same time, the Appellant was also an employee of the 2nd Respondent and subject to section 21 of Act

The Appellant was appointed or seconded, for a fixed term, to perform the duties of deputy CEO of the 2nd Respondent, without any derogation to her position as a permanent employee of the 2nd Respondent. The Minister was empowered to revoke the appointment of the Appellant as deputy CEO. But the Minister had no powers to terminate the Appellant as a permanent employee of the 2nd Respondent. “A statute must be construed in manner which carries out the intention of the legislature and the intention of the legislature must be gathered from the words of the statute itself.” In interpreting section 11 of Act 614, the Minister should be limited to the four walls of the powers conferred upon him by section 11” (learned counsel cited Westminster Corporation v London Western Railway [1905] AC 426 at 430; Barium Chemicals Ltd v Company Law Board AIR 1967 SC 295 at 323). The Minister had no powers to concurrently terminate the Appellant as an employee of the 2nd Respondent. Only the appointing authority has the authority to remove (learned counsel cited Sabdin Ghani v 9 Musa Haji Aman [1993] 2 CLJ 109 at 113; sections 47 and 94 of the Interpretation Acts of 1948 and 1967; Lim Eye Thun v Majlis Peguam Malaysia & anor [2010] 2 MLJ 444 at 445; B Surinder Singh Kanda v The Government of Malaya (1962) 28 MLJ 169). The power to dismiss finds its source in the power to appoint. In the instant case, the power of the Minister to dismiss was limited to the position which the Minister had appointed.

Learned Senior Federal Counsel appearing for the 1st, 3rd and 4th Respondents submitted as follows: The case was decided on the findings of fact of the High Court. The facts and supporting documents showed that disciplinary proceedings were carried out in accordance with the law. The decision to dismiss the Appellant was made by the authority with the power to do so, which was the DC. “What transpired ... was that upon arriving at the decision to dismiss the Appellant, the DC then made recommendations to the Minister that the Appellant’s contract of service in CCM be terminated and her position as the [deputy] CEO of CCM be revoked in accordance with section 11 of Act 614.” The Minister agreed with the aforesaid recommendations. Pursuant to section 11 of Act 614, the Minister had the power to appoint and revoke the Appellant’s appointment as deputy CEO. It was the DC that decided on dismissal. The disciplinary proceeding was conducted pursuant to the 2nd Schedule to Act 605. The Minister was party to the disciplinary proceeding pursuant to section 8(3) of Act 605 read together with section 11(1)(b) of Act 614. In paragraph 12 of 10 his affidavit dated 25.7.2014, the Minister affirmed that under section 8(4) of Act 605, he was entrusted with the duty to certify the decision of the DC made pursuant to Regulation 40 of Act 605, to dismiss the Appellant. The Minister gave effect to the findings of the DC. Even if answered in the negative, the question of law is of no consequence to the result, as the relief sought in the application for judicial review did not challenge the finding of misconduct. The relief sought was with respect to the Minister’s letter dated 28.11.2012. In this appeal, the Appellant merely challenged the decision of the Minister to issue the letter dated 28.11.2012; the Appellant did not challenge the finding of misconduct. In other words, the disciplinary proceeding was unchallenged. The only issue raised by the Appellant was whether the decision of the DC was properly implemented by the letter dated 28.11.2012. Based on the facts and circumstances of the case, the legality of the disciplinary process was not affected by the issuance of the letter dated 28.11.2012. The disciplinary process remained valid and lawful. Even if the Minister had no power to inform the Appellant of the decision of the DC, it remained only for the 2nd Respondent to issue a letter of dismissal. No prejudice was occasioned. The disciplinary proceeding was conducted in accordance with section 8(2) of Act 605. The Minister certified the recommendations made by the DC. The Minister had correctly exercised his discretion to certify the recommendations of dismissal and revocation of appointment of deputy CEO. Dismissal was valid in law. 11

Learned counsel for the 2nd Respondent submitted as follows: The Minister is part of the employment structure within the 2nd Respondent under Act 614. The Minister is the designated ministerial authority under Act 614. Pursuant to sections 6 and 8 of Act 614, the Minister is accorded appointment and revocation powers in respect of membership on the Commission. Pursuant to section 11 of Act 614, the Minister is empowered to appoint and revoke the appointment of the Chief Executive Officer and his deputies. All substantive decisions were made by the DC. It was the DC that conducted the investigation and made the findings. “The Minister gave effect to the decision by exercising his powers under section 11 to revoke the Appellant’s appointment and terminate her employment in consequence of his review of the findings and recommendations of the DC.” The findings of the disciplinary process formed the core and foundation of the Minister’s impugned decision. “The question of law does not challenge the heart of the dispute in the judicial review and is therefore of no consequence to the result of the appeal.” This court has jurisdiction to dismiss the appeal and to decline to answer a question of law (learned counsel cited Sabah Forest Industries Sdn Bhd v UNP Plywood Sdn Bhd [2010] 1 MLJ 756). The Appellant sought not to challenge the propriety of the disciplinary process or the finding of misconduct. That rendered this appeal academic. The Court of Appeal held that the core issue was whether Act 605 had been complied with. The Court of Appeal held that Act 605 had been complied with. However, the focus of 12 the question of law is whether the Minister had power to concurrently revoke the Appellant’s appointment as deputy CEO and terminate her employment with the 2nd Respondent. “The only issue is whether those findings and decisions were properly implemented ... this is at best a peripheral issue, which would not affect the legality and propriety of the disciplinary action taken against the Appellant”. It is settled that a procedural defect in the manner in which a disciplinary punishment is effected, which is denied, would not render as void the disciplinary order/punishment imposed. In Subramaniam a/l Sannasy v SAC II Syed Alwi bin Syed Hamid [2010] 2 MLJ 597, the Federal Court held that an erroneous reference to a legislative provision in a dismissal letter would not render as void the decision to dismiss the officer. In Selvaratnam a/l Vellupillai v Dr Jayabalan Karrupiah [2009] 1 MLJ 794 at [21], the Federal Court dismissed a challenge premised on the complaint that the impugned punishment letter had not been signed by the chairman of the disciplinary committee. In the instant case, the challenge “that arises from the question of law is purely against the manner in which the disciplinary decisions were effected and not the decisions in themselves”. Even if the question of law were answered in the negative, that is, that the Minister had no power to terminate the Appellant’s employment with the 2nd Respondent, “the effect of this finding is that CCM would just be required to issue a termination latter to rectify the process ... ” There could be no question of the Appellant returning to her previous position as Director of Registration Services, as the 13 finding of misconduct and the recommendation of dismissal stood. The concurrent findings of the court below that upheld the disciplinary punishment would remain undisturbed even if the Appellant were to succeed in obtaining an answer to the question of law in her favour. A further indication of the futility of the question of law is the narrow focus in the question. The Appellant did not challenge the source of the Minister’s decision - the findings of the DC. A judicial review challenge must be directed at the substantive act or decision which is the basis of complaint. That was made clear by Law J in R v Secretary of State and Industry ex p Greenpeace [1998] COD 98. “CCM was at all times the substantive decision maker in the disciplinary process ... The Minister was at best the executor of the decision.” In any event, the Minister was empowered to terminate the Appellant’s employment as well as revoke her appointment for the following reasons: it was sufficient and proper for the employment of the Appellant to be terminated by way of the Minister’s revocation of her appointment as deputy CEO, as the appointment of deputy CEO was a ministerial appointment that was simultaneously a promotion; an employee’s promotion entails a departure from his/her previous position to a position of a higher grade; once appointed to the promoted position of deputy CEO, the Appellant ceased to occupy her position as Director of Registration Services; the Appellant had only one post when she assumed the position of deputy CEO; the 2nd Respondent had only one post to remove the Appellant from; the only circumstance under which the 2nd 14 Respondent and Minister would have to issue separate letters to remove the Appellant from her position within the 2 nd Respondent would be where her appointment as deputy CEO was a secondment; it was not a secondment, as the appointment of deputy CEO was from her previous position within the 2nd Respondent, and also as secondment entails an employee’s temporary transfer from his/her original employer to a completely different entity (learned counsel cited Bank Simpanan Nasional Finance Bhd v Omar Hashim [2002] 1 ILR 272); a secondment cannot involve a transfer to a higher position/employment grade (learned counsel cite Badrulsam Mansor v Ehran Berhad [2010] 2 LNS 0232); it is clear that the Appellant’s position at the 2nd Respondent was terminated upon revocation of her appointment as deputy CEO by the letter dated 28.11.2012; “it is legally impossible to occupy two employment positions concurrently within the same employer; the Appellant had only the position of deputy CEO at the time of her dismissal”. “Section 11 does not stipulate that the termination of the employment of the deputy CEO can only be effected by CCM and not the Minister.” Through the question of law, the Appellant purported to argue that the Minister acted beyond his powers and that only CCM was empowered to effect the termination. The Appellant sought to read into section 11 of Act 614 a set of duties and obligations that did not exist. It was not open to the Appellant to embark upon such an interpretative exercise, as it is settled that a body is not required to discharge functions beyond those prescribed under the statute 15 in question. In Ketua Polis Negara v Goh Ching Huat [2011] 3 MLJ 1, the Federal Court rejected the argument that the dismissal of a police officer was unlawful because the wrong authority had signed and issued the termination letter. In this connection, Richard Malanjum CJ (SS) observed that “there is also nothing in the O 26 of the Public Officers (Conduct and Discipline)(Chapter D) General Orders 1980 requiring that a decision of the disciplinary authority must be notified only by it to the subject of a disciplinary action”. It was sufficient for the Appellant’s employment to be terminated by way of the Minister’s revocation of her appointment pursuant to section 11 of Act 614. “ ... CCM treated the Appellant’s employment as at an end following the finding of guilt ... there is no scope to argue that her permanent position as a permanent employee subsisted following the issuance of the Minister’s letter dated 28.11.2012.” Our decision 11. Article 132(2A) of the Federal Constitution provides as follows: “Except as expressly provided by this Constitution, every person who is a member of any of the services mentioned in paragraphs (a), (b), (c), (d), (f) and (h) of Clause (1) holds office during the pleasure of the Yang di-Pertuan Agong, and, except as expressly provided by the Constitution of the State, every person who is a member of the public service of a State holds office 16 during the pleasure of the Ruler or Yang di-Pertuan

Negeri.” Article 135 of the Federal Constitution imposes the following 3 restrictions on the doctrine of ‘during the pleasure of the Yang di-Pertuan Agong’: “(1) No member of any of the services mentioned in paragraphs (b) to (h) of Clause (1) of Article 132 shall be dismissed or reduced in rank by an authority subordinate to that which, at the time of the dismissal or reduction, has power to appoint a member of that service of equal rank: Provided that in its application to members of the services mentioned in paragraph (g) of Clause (1) of Article 132 this Clause shall not apply to any law which the legislature of any State, other than Penang and Malacca, may make to provide that all powers and functions of a Public Service Commission of such State, other than the power of first appointment to the permanent or pensionable establishment, be exercised by a Board appointed by the Ruler of such State: And provided further that this Clause shall not apply to a case where a member of any of the services mentioned in this Clause is dismissed or reduced in rank by an authority in pursuance of a power delegated to it by a Commission to which this Part applies, and this proviso shall be deemed to have been an integral part of this Clause as from Merdeka Day.

(a) where a member of such a service is dismissed or reduced in rank on the ground of conduct in respect of which a criminal charge has been proved against him; or

(b) where the authority empowered to dismiss or reduce in rank a member of such a service is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to carry out the requirements of this Clause; or

(c) where the Yang di-Pertuan Agong, or, in the case of a member of the public service of a State, the Ruler or Yang di-Pertuan Negeri of that State, is satisfied that in the interests of the security of the Federation or any part thereof it is not expedient to carry out the requirements of this Clause; or

(d) where there has been made against a member of such a service any order of detention, supervision, restricted residence, banishment or deportation, or where there has been imposed on such a member any form of restriction or supervision by bond or otherwise, under any law relating to the security of the Federation or any part thereof, prevention of crime, preventive detention, restricted residence, banishment, immigration, or protection of women and girls: Provided further that for the purpose of this Article, where the service of a member of such a service is terminated in the public interest under any law for the time being in force or under any regulation made by the Yang di-Pertuan Agong under Clause (2) of Article 132, such termination of service shall not constitute dismissal 18 whether or not the decision to terminate the service is connected with the misconduct of or unsatisfactory performance of duty by such member in relation to his office or the consequences of the termination involved an element of punishment; and this proviso shall be deemed to have been an integral part of this Article as from Merdeka Day.

As a member of the public service, the Appellant could not be “dismissed or reduced in rank by an authority subordinate to that which, at the time of the dismissal or reduction, has power to appoint a member of that service of equal rank” (Article 135(1) of the Federal Constitution). Except where the provision to Article 135(2) applied, the Appellant could only be “dismissed or reduced in rank by an authority in pursuance of a power delegated to it by a Commission to which this Part applies … ” (2nd proviso to Article 135(1) of the Federal Constitution). And except where the proviso to Article 135(2) of the Federal Constitution applied or where early retirement was opted for, the Appellant would retire from the public service on attaining the age of retirement (now sixty years - section 10(1) of the Pensions Act 1980). 19

Retirement on attainment of the age of retirement was unaffected when the Appellant opted to serve as an employee of the 2nd Respondent. Section 21(2) of Act 614 stipulates that “every such person who opts under subsection (1) to serve as an employee of the Commission shall be employed by the Commission on terms and conditions of service not less favourable than the terms and conditions of service to which he was entitled immediately before the appointed date”. Accordingly, the Appellant should retire from service with the 2nd Respondent on attaining the age of sixty years.

But there was a change in the disciplinary authority when the Appellant opted to serve the 2nd Respondent. Section 6(1) of Act 605, which applies to the 2nd Respondent (see section 2 read together with section 4 of Act 605), provides that “the disciplinary authorities in respect of the various categories of officers shall be the Disciplinary Committees established in accordance with Part I of the Third Schedule and the provisions of that Part shall apply to, and be complied with by, every Disciplinary Committee so established”. The disciplinary authority with jurisdiction to adjudicate over a disciplinary hearing against an errant officer is the appropriate Disciplinary Committee established in accordance with Part I of the Third Schedule to Act 605. 20

But Act 605 provides for a special Disciplinary Committee to adjudicate over the disciplinary hearing against a Director General [“Director General means the person, by whatever name called, who is charged with the day to day administration and management of the affairs of a statutory body” (section 4 of Act 605)] and his deputy. Section 8 of Act 605 provides: “(1) Where the Director General or his deputy is appointed by the Yang di-Pertuan Agong, the Disciplinary Committee in respect of such Director General or such deputy shall consist of the Minister as chairman and two members of the Board appointed by the Minister.

Section 7 of Act 605 provides that “an officer who has been found guilty of a disciplinary offence by a Disciplinary Committee may appeal against such decision to the appropriate Disciplinary Appeal Committee established in accordance with Part II of the Third Schedule and the Appendix to that Schedule and the provisions of that Part shall apply to, and be complied with by, every Disciplinary Appeal Committee so established”. An " ’officer’ means a person who is employed on a permanent, temporary or contractual basis by a statutory body, and is paid emoluments by the statutory body, and includes a person who is seconded to any subsidiary corporation or company of the statutory body or any other statutory body or any Ministry, department or agency of the Federal Government or any department or agency of the Government of any State or any company in which the Federal Government or the Government of any State has an interest” (section 4 of Act 605).

An officer has a right of appeal to the Disciplinary Appeal Committee. Yet at the same time, section 8(4) of Act 605 provides that “the decision of … the Minister … in respect of a Director General or his deputy shall be final”.

“The golden rule is that the words of a statute must prima facie be given their ordinary meaning” (Sim Kim Ong v Goh Phaik Soo [1976] 1 MLJ 232 per Lee Hun Hoe CJ (Borneo) (Suffian LP and Wan Sulaiman FJ in agreement). 22

However, “It is presumed that the provisions of legislation are meant to work together both logically and teleologically, as part of a functioning whole. The parts are presumed to fit together logically to form a rational, internally consistent framework; and because the framework has a purpose, the parts are also presumed to work dynamically, each contributing something towards the intended goal (R v L.T.H. [2008] S.C.R. 739). The presumption of coherence is also expressed as a presumption against internal conflict. It is presumed that the body of legislation enacted by a legislation does not contain contradictions or inconsistencies, that each provision is capable of operating without coming into conflict with any other ... The presumption of coherence is virtually irrebutable ... contradiction or inconsistency cannot be tolerated; some method of reconciliation must be found. The courts have a number of strategies to ensure this result … If the provisions cannot both apply without conflict, the courts resort to … (i) legislative intent, whether express or implied; (2) strained interpretation; (3) the paramountcy of some categories of legislation over others; (4) implied exception (generalia specialibus non derogant); and (5) implied repeal” (Sullivan on the Construction of Statutes 6th Edition at 11.2 - 11.6).

When given their ordinary meaning, a right of appeal (section 7 of Act 605) and the decision of the Minister shall be final (section 8(4) of Act 605) could not both be applied without conflict. 23

“Conflicts that arise in applying legislation, along with internal inconsistencies, are well recognized forms of absurdity which courts do their best to avoid, even at the cost of a strained or implausible meaning to a provision. As Lord Wensleydale wrote in Grey v Pearson (1857) 6 HL Cas 61, 106: ‘the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity or inconsistency, but not farther’ ” (Sullivan on the Construction of Statutes supra at 11.51). Lord Simon in Farrell v Alexander [1976] 2 All ER 721, at 735–736, said: “The first or 'golden' rule is to ascertain the primary and natural sense of the statutory words in their context, since it is to be presumed that it is in this sense that the draftsman is using the words in order to convey what it is that Parliament meant to say. They will only be read in some other sense if that is necessary to obviate injustice, absurdity, anomaly or contradiction, or to prevent impediment of the statutory objective”. “ … conflict should be avoided through interpretation … there are two ways to avoid conflict interpretation … The first is to show that, properly interpreted, the apparently conflicting provisions do not overlap and therefore cannot conflict … The other way of avoiding conflict acknowledges that, given their ordinary meaning, the provisions do overlap and if both were applied in accordance with their meaning they would conflict. To avoid the conflict, the court gives one of them a strained 24 interpretation or reads one of them down” (Sullivan on the Construction of Statutes supra at 11.38). McGarvie J in Accident Touring & Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529 at 548 made the point that the responsibility rests with the court for the interpretation to be placed on an enactment.

All officers have a right of appeal to the Disciplinary Appeal Committee. Article 8(1) of the Federal Constitution stipulates that “all persons are equal before the law and entitled to the equal protection of the law”. A Director General or his deputy has the equal protection of the law. Pursuant to section 8(3) of Act 614, the DC “may make any recommendation to the Yang di-Pertuan Agong or the Minister by whom the Director General or his deputy was appointed as to the punishment to be imposed on or any other action to be taken against such Director General or his deputy”. Section 8(4) of Act 614 provides that “the decision of the Yang di-Pertuan Agong or the Minister, as the case may be, in respect of a Director General or his deputy shall be final”. But section 8(4) could not be construed to mean that the decision of the Minister shall be final against the Director General or his deputy. Such a reading would not only be at odds with section 7 of Act 605 but would also produce an unjust result - the Director General and deputies alone would not have the right to appeal against whatever decision to the Disciplinary Appeal Committee. “If one construction will do manifest injustice and the other avoid 25 it, the latter construction should be adopted” (Statutory Interpretation in Australia by DC Pearce and RS Geddes 4th Edition at page 41). But properly interpreted, the said section 8(4) merely provides that the recommendation may or may not be accepted by the Yang di-Pertuan Agong or the Minister by whom the Director General or his deputy was appointed. Whether accepted or turned down, the decision of the Yang di-Pertuan or the Minister shall be final as against the DC. The Director General and deputy would still have a right to appeal to the Disciplinary Appeal Committee. Only such an interpretation would give sense to both provisions without internal conflict or inconsistency.

This is the suitable juncture to address the core issue raised in the question of law - whether the Minister could dismiss the Appellant or could dismiss the Appellant in the manner adopted. First, it must be borne in mind that there is a world of difference between grade and post in the public service. Every officer joins the public service at a certain grade. He/she is promoted or demoted in grade. If a post is to be held by an officer of a certain grade, then the officer to assume and execute the duties of that post must be an officer of the required grade, either in current position or with promotion. But once an officer is promoted or demoted to a certain grade, his/her grade stays with him/her until his/her early or compulsory retirement. His/her post may change or may even be taken away altogether. An officer may not even hold a post. But his/her last grade will stay 26 unaffected, regardless of the attendance or absence of an official post. And unless dismissed, an officer retires only upon him/her attaining the retirement age.

Prior to her appointment as the deputy CEO of the 2nd Respondent, the Appellant was the Director of Registration Services of the 2nd Respondent. Her appointment as deputy CEO was made pursuant to section 11 of Act 614 which reads: “(1) The Minister shall appoint any person to be the Chief Executive Officer of the Commission on the terms and conditions as he may determine and may revoke the appointment of any person so appointed. …

The Minister was undoubtedly empowered to revoke the appointment of the Appellant as deputy CEO. But was the Minister empowered to dismiss the Appellant from service in the 2nd Respondent, which the Minister purported to do by his letter dated 28.11.2012?

Pertinent to a disciplinary proceeding against an employee of the 2nd Respondent, section 6 of Act 605 mandates: “(1) The disciplinary authorities in respect of the various categories of officers shall be the Disciplinary Committees established in accordance with Part I of the 27 Third Schedule and the provisions of that Part shall apply to, and be complied with by, every Disciplinary Committee so established.

The DC must comply with the procedure set out in the Regulations set out in Part V of the 2nd Schedule to Act 605. The DC complied with Regulations 32 to 38. But the DC did not comply with Regulation 39 which reads: “Powers of the Disciplinary Committee If, after considering the officer's representation and the report of the Investigation Committee, if any, the appropriate Disciplinary Committee-

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

(b) finds the officer guilty of the disciplinary offence alleged to have been committed by him but that, after taking into consideration 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 Committee shall impose upon the officer any one or more of the punishments other than dismissal or 28 reduction in rank as specified in regulation 40 as it deems appropriate; or

(c) finds the officer not guilty, the Disciplinary Committee shall acquit him.

Both section 6 and Regulation 39 of Act 605 gave the power to the DC to find the Appellant guilty and impose the punishment of dismissal. The DC found the Appellant guilty and made the recommendation to the Minister to revoke the appointment of the Appellant as deputy CEO and to dismiss the Appellant. The Minister accepted the recommendation of the DC. Thereafter, with the Minister’s acceptance of the recommendation, the DC should proceed to impose the punishment of dismissal. But the DC did not do so. Rather, it was the Minister who imposed the punishment of dismissal - “selaras dengan seksyen 11(1)(b) Akta Suruhanjaya Syarikat Malaysia 2001 (Akta 614) saya dengan ini menamatkan kontrak perhidmatan dan membatalkan pelantikan Puan sebagai Timbalan Pengarah Eksekutif”.

It was argued that the Minister merely executed the will of the DC. But with respect, the Minister had no such power to execute the will of the DC with respect to dismissal. In Lionel v Government of Malaysia [1971] 2 MLJ 172, the appellant was a temporary clerk-interpreter in the Kelantan Police Contingent. He was transferred to Contingent Police Headquarters in Johore Bahru. In 1962, disciplinary action was taken against him by the Chief Police Officer, Johore, under regulation 32 of the General Orders, 29 Chapter D, for acts of alleged indiscipline. The Chief Police Officer informed him that he had failed to exculpate himself and that it had been decided to terminate his services as a temporary clerk. The appellant appealed, but his appeal to the Public Services Commission was dismissed. He sought a declaration that his purported dismissal by the Chief Police Officer was void, inoperative and of no effect. Citing Article 135(1) of the Federal Court per Ong CJ (Malaysia) (Gill and Ali FJJ in agreement) held the dismissal of the appellant by the Chief Police Officer was void: “Article 160(1) applies the Interpretation and General Clauses Ordinance 1948 to the interpretation of the Constitution. Section 29 of the Ordinance states that ‘where a written law confers upon any person or authority a power to make appointments to any office or place, the power shall, unless the contrary intention appears, be construed as including a power to dismiss … ’ At the date of the appellant's dismissal the authority which could have appointed him was the Public Services Commission, which, therefore, was the authority having power to dismiss – not the Chief Police Officer who was subordinate to the Public Services Commission. Not having been delegated the power of dismissal generally or in this particular case, the Chief Police Officer's act was clearly contrary to the Constitution and therefore void: see SS Kanda v Government of the Federation of Malaya [1962] MLJ 169 171–172. That the appellant, when accepting appointment in 1953 had expressly agreed to accept one month's notice of termination of his services, is no more an answer to his claim than it was to Inspector Kanda. A public servant is guaranteed security of tenure of his office under Part X of the Constitution, which is the supreme law: see article 4. Just as it is impossible to contract out of the provisions 30 of rent control legislation, a fortiori must the terms of the appellant's appointment (including regulation 36 of General Orders, Chapter D) be invalid where it is inconsistent with the Constitution.”

The 2nd Respondent was the appointing and therefore the dismissing authority. Pursuant to Section 6 and Regulation 39 of Act 605, the power of dismissal was delegated to the DC. Only the DC could dismiss the Appellant. The Minister was empowered to accept or turn down the recommendation of the DC, to appoint or revoke the appointment of the Appellant as the deputy CEO. But the Minister had no actual or delegated power to dismiss the Appellant. As said, only the DC could dismiss the Appellant. By contrast, in Goh Ching Huat, the dismissal letter, although signed by the deputy of the author, was nonetheless the act of the disciplinary authority - “It did not matter who eventually signed it” (Goh Ching Huat at [24] per Richard Malanjum CJ (Sabah & Sarawak), delivering the judgment of the court). Dismissal in Goh Ching Huat was by the proper authority. But in the instant case, the Appellant was dismissed by the Minister and not by the DC. The impugned dismissal was void.

For the above reasons, we unanimously answer the question of law in the negative, allow this appeal with costs, and set aside the orders below.

The Appellant, who attained the age of retirement in 2015, could not be reinstated to employment at her last grade. In 31 view of that, we could only order the 2nd Respondent, which we do, to pay to the Appellant (i) wages at her last grade for the period from date of dismissal to 5.12.2015, and (ii) all gratuities and retirement benefits calculated as if the Appellant had retired on 5.12.2015. Dated this 12th day of March 2018. Tan Sri Jeffrey Tan Hakim Mahkamah Persekutuan Malaysia COUNSEL For the Appellant : Khoo Guan Huat (Alyshea Low with him) Solicitors: Tetuan Skrine For the 1st, 3rd & 4th : Suzana bt Atan (Natrah bt Respondents Idris with her) Peguam Kanan Persekutuan Jabatan Peguam Negara Putrajaya For the 2nd Respondent : Steven Thiru (Gregory Das with him) Solicitors: Tetuan Shook Lin & Bok