Sakthi Devi A/P Muniandy @ Segaran v 1. ) Lembaga Rayuan Tatatertib Perkhidmatan Awam (BA-25-36-05/2021)

LEMBAGA RAYUAN TATATERTIB PERKHIDMATAN

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KERAJAAN MALAYSIA …RESPONDEN-RESPONDEN Didengar Bersama DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA PERMOHONAN SEMAKAN KEHAKIMAN NO.: BA-25-36-05/2021 Dalam Perkara Kebenaran untuk Memfailkan Prosiding Semakan Kehakiman Di Bawah Aturan 53 Kaedah 3 dan Kaedah 3(7) Kaedah-Kaedah Mahkamah 2012 dan Aturan 92 Kaedah 4 serta bidang kuasa Mahkamah sedia ada untuk membenarkan permohonan untuk lanjutan masa. Dan Dalam Perkara Keputusan oleh Responden Pertama bertarikh 24.08.2020 yang menolak rayuan terhadap keputusan Lembaga Tatatertib Perkhidmatan Pendidikan Kumpulan Sokongan (No.1) bertarikh 25.3.2019 Dan Dalam Perkara Perenggan 1 kepada Jadual Akta Mahkamah Kehakiman 1964 Dan Dalam Perkara Bab VIII Bahagian 2 Akta Relif Spesifik 1950 Dan Dalam Perkara Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993 dan Peraturan-Peraturan Lembaga Tatatertib Perkhidmatan Pendidikan 1994 ANTARA LETCHUMY A/P SUBRAMANIAM (No. K/P: 791103-10-5950) …PEMOHON DAN 1. LEMBAGA RAYUAN TATATERTIB PERKHIDMATAN

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KERAJAAN MALAYSIA …RESPONDEN-RESPONDEN JUDGMENT Introduction [1] This is an application for judicial review in accordance with Order 53 of the Rules of Court 2012 ("ROC 2012"). The applicants, Sakthi Devi A/P Muniandy (“Sakthi”) and Letchumy A/P Subramaniam (“Letchumy”) (collectively “the applicants”) filed this application to challenge the decision made by the first respondent, the Education Service Disciplinary Appeal Board on 24 August 2020. The decision in question pertained to the dismissal of the applicants appeal regarding disciplinary actions taken against them by the Education Service Disciplinary Board for the Support Group (No. 1) (“LTPPKS1”). [2] LTPPKS1 is not named as one of the respondents in the present suit before this court. The decision which the applicants seek this court to quash is an order of the Appeal Board under the Ministry of Education affirming the decision of LTPPKS1 to dismiss the applicants from services. [3] The disciplinary action against Sakthi and Letchumy were conducted separately by the LTPPKS1. Both Sakthi and Letchumy respectively received a letter dated 29 December 2017 entitled “Disciplinary Action with the purpose of Dismissal or Reduction in Rank” (“the LTPPKS1 Letters”). At that material time, Sakthi and Letchumy are both teachers working in Sekolah Jenis Kebangsaan (Tamil) Ladang Sungai Rambai (“SJKT Ladang Sungai Rambai”). [4] Due to the similarity in the factual matrix surrounding the disciplinary proceedings before LTPPKS1 and subsequently the first respondent, the applicants have in their respective Affidavit in Support averred that the application for judicial review by both the applicants can be heard together. The respondents have acknowledged the same. These two applications were heard together before this court. Reliefs Sought [5] Briefly, the applicants sought the following reliefs in this application for judicial review:

an order of certiorari to quash the decision of the first respondent in rejecting the appeal against the LTPPKS1 decision;

(ii) an order that the LTPPKS1 decision be quashed;

(iii) that the applicants be reinstated as second respondent and third respondent’s employee as teacher and be placed in a school located in Kuala Selangor;

(iv) that all salaries and allowances which were suspended by the respondents ever since they were suspended and throughout the proceedings of this application for judicial review be taxed by the court and paid to the applicants jointly and/or severally;

damages suffered by the applicants to be paid by the respondents jointly and/or severally;

(vi) all instruction and order arisen and necessary; and

(vii) interests and costs. Factual Background [6] The applicants averred that the cause of all events that happened is the teachers’ complaint against the then headmistress of SJKT Ladang Sungai Rambai, Mehar Banu Binti Pakeer Mohammad (“the SJKTLSR Headmistress”) which ultimately led to the issuance of the Sakthi Transfer Order and the Letchumy Transfer Order. The applicants were serving as Pegawai Perkhidmatan Pendidikan at Sekolah Jenis Kebangsaan (SJK) (Tamil) Ladang Sungai Rambai (“SJKTLSR”), Selangor then transferred to SJK (Tamil) Ladang Sungai Tinggi, Kuala Selangor, Selangor. [7] The applicants’ Affidavit in Support contained averments in relation to how they suffered oppression by the collective conspiracy between the SJKTLSR Headmistress and the officers of the Kuala Selangor District Education Office. [8] Due to the applicants’ failure to report to their new school, disciplinary action has been taken against them. The applicants’ appeal against their respective Transfer Order receive no response except their appeal against the Kuala Selangor District Education Office which the outcome thereof was not in their favour. The applicants did not receive any reply on their complaints against the SJKTLSR Headmistress too. The applicants were eventually dismissed pursuant to the decision of the first respondent. The Charges [9] The charges framed against both the applicants were identical and could be succinctly reproduced as follows:

in relation to the First Charge (“First Charge”), the applicants, during their service in Sekolah Jenis Kebangsaan (Tamil) Ladang Sungai Rambai, Kuala Selangor, Selangor have, without the approval of the Head of Department, exited the vicinity of the school and went to the Bestari Jaya Police Station and therafter to the Selangor Education Department during teaching hours on 1 March 2017, 9.20 a.m. The applicants were reported to have failed to return to the school for the rest of the day and have never recorded the applicants’ return hour. Such act of the applicants shall be deemed to have breached the code of conduct under General Order 5 Chapter G, rule 5 vis-à-vis compliance with working hours and the applicants were being charged for being irresponsible and insubordination under Regulations 4(2)(g) and 4(2)(i), Public

(ii) in relation to the Second Charge (“Second Charge”), the charges framed against the applicants respectively are as followed:-

as against Sakthi, that she being on duty in Sekolah Jenis Kebangsaan (Tamil) Ladang Sungai Tinggi, Kuala Selangor, Kuala Selangor, Selangor had been found to have failed to attend duty without leave or without first having obtained the approval of the Head of Department or without any valid reason during a period from 2 May 2017 until 30 June 2017 and therefore disciplinary action could be initiated against Sakthi under Reg. 24 of the 1993 Regulations and be taken as in breach of the code of conduct under Regulation 4(2)(g) of the 1993 Regulations;

as against Letchumy, that she being on duty in Sekolah Jenis Kebangsaan (Tamil) Ladang Selangor River, Bukit Rotan, Selangor had been found to have failed to attend duty without first having obtained the approval of the Head of Department or without any valid reason during a period from 2 May 2017 until 24 July 2017 and therefore disciplinary action could be initiated against Letchumy under Regulation 24 of the 1993 Regulations and be taken as in breach of the code of conduct under Reg. 4(2)(g) of the 1993 Regulations.

(iii) in relation to the Third Charge (“Third Charge”), the charges framed against the applicants are as follows respectively:

as against Sakthi, the she being on duty in Sekolah Jenis Kebangsaan (Tamil) Ladang Sungai Tinggi, Kuala Selangor, Kuala Selangor, Selangor had been found to have committed insubordination by failing to report on 2 May 2017 following the Transfer Order issued by the Kuala Selangor District Education Office dated 27 April 2017 (“the Sakthi Transfer Order”) and such conduct can be taken to mean that Sakthi had breached the code of conduct under Regulation 4(2)(i) of the 1993 Regulations;

as against Letchumy, that she being on duty in Sekolah Jenis Kebangsaan (Tamil) Ladang Selangor River, Bukit Rotan, Selangor had been found to have committed insubordination by failing to report on 2 May 2017 following the Transfer Order issued by the Kuala Selangor District Education Office dated 27 April 2017 (“the Letchumy Transfer Order”) and such conduct can be taken to mean that Letchumy had breached the code of conduct under Regulation 4(2)(i) of the 1993 Regulations. [10] Vide two separate letters both dated 25 March 2019, LTPPKS1 have through the Secretary General of third respondent conveyed to each of the applicants the decision of LTPPKS1, and the punishments meted out against the applicants are same, as follows:

in relation to the First Charge, the applicants were given a warning pursuant to Regulation 38(a) of the 1993 Regulations;

(ii) in relation to the Second Charge, the applicants were dismissed effective from 19 March 2019 pursuant to Regulation 38(g) of the 1993 Regulations and during the period which the applicants were absent from duty, the rights to emolument were forfeited pursuant to Regulation 38(c) of the 1993 Regulations;

(iii) with respect to the Third Charge, the applicants were dismissed effective from 19 March 2019 pursuant to Regulation 38(g) of the 1993 Regulations. (collectively as “LTPPKS1 Decision”) [11] The applicants were given the opportunity to appeal to first respondent within fourteen (14) days from the date the applicants received the LTPPKS1 Decision provided the appeal is made through the applicants’ respective Head of Department and, the appeal letter prepared by the applicants are to be addressed to the Chairman of first respondent, through the Headmaster of the schools which the details thereof have been stated in the LTPPKS1 Decision. The applicants submitted the appeal letter. [12] On 24 August 2020, the first respondent had through the Deputy Chairman of the second respondent, the Education Service Commission rejected the appeal of the applicants and affirmed the LTPPKS1 Decision (“the first respondent Decision”). Both the applicants acknowledged being communicated with the first respondent Decision. Aggrieved by the first respondent Decision, both the applicants filed their respective application for judicial review before this court. The Grounds for The Judicial Review Application [13] The applicant’s grounds for this judicial review succinctly are as follows:

the first respondent’s Decision is defective, irregular and bias;

(ii) the first respondent’s Decision in rejecting the applicants’ appeal against the LTPPKS1 decision is unlawful due to irregularity in procedure and substance, and biasness;

(iii) the applicants were not treated equally with other officers which are involved in the same misconduct;

(iv) the second respondent and third respondent have breached their fiduciary duty toward the applicants and not replying to the letters of the applicants; and

the first respondent’s Decision is a consequence of conspiracy between the officers of the second respondent and third respondent. Law relating to Judicial Review [14] Before this court proceeds to consider this application, it would be prudent to consider the legal principles relating to an application for judicial review. Order 53 of the Rules of Court 2012 provides for the procedures for an application for judicial review. [15] The principles surrounding the application for judicial review are trite. The court hearing an application for judicial review are allowed to scrutinize not only the decision making process but also for substance, as to whether they are tainted by illegality, irrationality or Wednesbury unreasonableness, procedural impropriety and also proportionality [refer the Federal Court case of R Rama Chandra v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147]. [16] Notwithstanding the foregoing approach, it has also been decided by the Federal Court case of Ranjut Kaur S Gopal Singh v Hotel Excelsior (M) Sdn. Bhd. [2010] 8 CLJ 629 that, only in the most appropriate of cases the Rama Chandran (supra) approach is applicable. Cases involving issue of public policy, national interest, public safety or national security are not amenable to the approach taken in Rama Chandran (supra). [17] Founded on these principles, this court will now proceed to analyse the grounds presented by the applicant in this application for judicial review. Analysis and Findings [18] In order to consider whether these applications would warrant an order of certiorari, this court referred to the provisions of the Education Service Disciplinary Board Regulations 1994 (“the 1994 Regulations”). [19] As the first respondent gave a decision pursuant to subregulation 11(2) of the 1994 Regulations, it is pertinent to refer to the 1994 Regulations on the procedural requirements governing the disciplinary appeal proceedings before the first respondent. [20] In this respect, regulations 14 and 15 of the 1994 Regulations provide: “Regulation 14. Procedure of appeal.

An appeal shall be made in writing by an officer referred to the regulation 13 (hereinafter referred to as "the appellant") to be Disciplinary Appeal Board through his Head of Department within fourteen days from the date on which the decision of the Disciplinary Board is communicated to him in writing.

The Head of Department shall, not later than thirty days from the date of receipt of the appeal from the appellant, submit such appeal to the Disciplinary Board together with his comments.

On receipt of the appeal under subregulation (2) the Disciplinary Board shall cause to be prepared a copy of the records of proceedings of the Disciplinary Board, including the grounds on which the Disciplinary Board relied upon in arriving at its decision.

The records of proceedings prepared under subregulation (3) together with the grounds of decision and the appellant's appeal shall be sent to the Disciplinary Appeal Board not later than thirty days from the date of receipt of the appeal by the Disciplinary Board. Regulation 15. Hearing of appeal.

Upon receipt of the documents, the Chairman of the Disciplinary Appeal Board shall convene a meeting of the Disciplinary Appeal Board to consider the appeal.

The Disciplinary Appeal Board shall decide an appeal solely on the merits of the grounds of the appeal without receiving any further statement or evidence.

Notwithstanding subregulation (2), the Disciplinary Appeal Board may, at its sole discretion and subject to the appellant's right of being heard, call for any statement or evidence from any person if it is of the opinion that it would be fair and just so to do.

After considering the appeal, the Disciplinary Appeal Board may-

remit the case to the Disciplinary Board for reconsideration;

confirm the decision of the Disciplinary Board;

confirm the decision of the Disciplinary Board as regards the appellant's wrongdoing, but vary the punishment to that of a lesser one; or

reverse the decision and punishment of the Disciplinary Board and acquit the appellant.

The decision of the Disciplinary Appeal Board shall be final.” [21] Based on the abovementioned regulations, first respondent in dealing with the appeals made by the applicants shall consider solely on the merits of the grounds of appeal without receiving any further statement or evidence. The documents and/or information available before first respondent would be a copy of the records of proceedings of LTPPKS1 and how LTPPKS1 arrived at LTPPKS1 Decision. [22] In the representation for appeal submitted by Sakthi and Letchumy respectively, it is observed that both of the applicants did not address the issue on the new schools mentioned in the Second Charge preferred against each of them but rather, launched their attacks on the alleged misconducts of SJKTLSR Headmistress and challenged the validity of the Transfer Order against them. The applicants did not address the issue or admit that they indeed are on duty (bertugas) in their new respective schools (except Sakthi who stated that she agreed to report to duty in her new school on a without prejudice basis). [23] The approach taken by first respondent in considering the applicants’ appeal before them are identical upon perusal of the Affidavit in Reply filed by the respondents. The first and second respondents averred that “representasi yang dikemukakan tidak dapat melepaskan Pemohon daripada pelanggaran yang telah dilakukan”. The first respondent and second respondent also averred that “LRTTPP telah menimbangkan rayuan Pemohon sebagaimana yang terkandung dalam surat Rayuan Pemohon bertarikh 29.4.2019 dalam membuat keputusan”. [24] In this regard, this court observes that the 1994 Regulations do not compel first respondent to give their reasons in arriving at the first respondent decision. [25] With regard to the Third Charge vis-à-vis the allegation of insubordination for failure to comply with the Letchumy Transfer Order and the Sakthi Transfer Order, this court alluded to the case of Kamaruddin Sharif v. Suruhanjaya Pasukan Polis and Kerajaan Malaysia [2023] 1 LNS 1287 where the court stated: “The law in regard to transfer orders in the civil service is trite. Employment in the civil service is at the pleasure of the Yang di-Pertuan Agong. It is the Government that decides on the transfer of civil servants and the courts do not question whether the transfer is reasonable or not. To interfere with transfer orders would be an usurpation of the Government’s function. A civil servant must obey the instructions issued on transfers and failure to do so would be an act of insubordination. … A civil servant must report for duty in accordance with the transfer order unless before the date an officer is required to report for duty, there is a deferment of the date of transfer or change in the transfer order upon request. If there is none, the failure to report is, for the sake of repetition, an act of insubordination. In such situations it is incumbent on the head of department to take the necessary action against the officer who fails to report for duty.” [26] What can be gleaned from the above excerpt is that a Transfer Order is not reviewable and failure to comply with the same amounts to insubordination. [27] The applicants have in their affidavits averred that they have made several attempts to appeal against the Transfer Order issued against them. The applicants agreed that their first appeal to the Kuala Selangor District Education Office have been rejected. However they proceeded to appeal against the decision for the Transfer Order. [28] Sakthi had particularly exhibited her letters to the Director of the Selangor Education Department and various personnel within the third respondent such as the Head Director of Education Malaysia, the Deputy Education Minister 1, the Head Secretary of Education Ministry of Malaysia, the then Minister of Education, the then Deputy Education Minister

The appeal process continued until July 2017. [29] It is noted that the Head of Department of the new schools which the applicants were supposed to report duty to seem to have no issues with regard to the failure of the applicants to report for duty. [30] In their comment to the Disciplinary Appeal Board (first respondent), the Headmistress to which the applicants are supposed to report duty to, had done the following:

the Headmistress for the school which Letchumy was supposed to report duty to had made a remark “dipanjangkan” (forward) whereas; and

(ii) the Headmistress for the school which Sakhti was supposed to report to has in her comment stated that she is prepared to accept Sakhti and that “pelanggaran disiplin berlaku di sekolah lamanya iaitu di SJKT Ladang Sungai Rambai”. [31] Pertaining to the applicants’ appeal against the Transfer Oder, there was no reply from any of the respondents. It is observed that neither Sakthi nor Letchumy had reported for duty at the school they were transferred to. In the view of this court, the applicants should have reported for duty at the respective schools even if they had lodged an appeal against the Transfer Order. As teacher and public servants the applicants were bound by the Transfer Order. [32] The applicants raised some other issues which could be succinctly dealt. On the issue of proportionality the applicants averred that the punishment meted out are too heavy despite there are certain more heavier offences committed. On this issue, it is appropriate to refer to the case of Kerajaan Malaysia & Ors v. Tay Chai Huat [2012] 3 CLJ 577, where it has been decided that in hearing administrative determination of public bodies are constrained to confirm the findings in disciplinary hearings unless there was a fundamental procedural flaw. In the event the court finds that the charges against the applicants are not a case which is suitable for review, then this particular ground ought not to be addressed. [33] With regard to the issue on conspiracy, the applicants averred that the SKJTLSR Headmistress has conspired with the officers and acted unfairly towards them and that the decision of the first respondent is subsequently been tainted. The applicants however are unable to produce any proof evidencing the same. Therefore, this ground is dismissed by this court. [34] Pertaining to the issue of fiduciary duty, the applicants subsequently complained that the respondents have breached their fiduciary duty in not responding to the applicants. This court is unable to understand how this is relevant in a judicial review application. The complaints are the ones surrounding the SJKTLSR and failure on the part of the respondents to address the same ought to have been determined in another forum. [35] Another issue raised by the applicants is regarding whistle-blower protection. This court is of the considered view that the application of judicial review concerns not on the protection of whistle-blower but rather on the decision making process. This ground is therefore a non-issue. [36] Regarding the ground of legitimate expectation, the applicants also averred that the issue of legitimate expectation shall apply. For legitimate expectation to arise it must be from someone who has a bearing or power over the body to which the legitimate expectation could be expected. The Minister of Education is neither the first respondent nor the LTPPKS1. This court is of the view that legitimate expectation ought not to have arise against him. [37] The applicants have also in their appeal representation slammed the LTPPKS1 for failing to establish an Investigation Committee. The counsel for the applicants cited Thirunavukarasu Angappan v. Kerajaan Malaysia & Ors [2022] 10 CLJ 604 in support. In my considered opinion, this is a case distinguishable from the case cited by the applicants. In Thirunavukasaru (supra), it involves complex issues which requires the explanation from experts, the expertise of which is not equipped by the Board. In the case before us, there is no issue on complexity other than a whole lump of facts being lump together. Furthermore, it is the discretion of the Disciplinary Committee to decide if an Investigation Committee is required or not. It is therefore not a mandatory requirement or procedure to establish the Investigation Committee. This ground is in the view of this court, untenable. Conclusion [38] This court is mindful this application for judicial review pertains to the livelihood of the applicants. Nonetheless, for the above mentioned reasons, this court is satisfied there is no illegality, irrationality or procedural impropriety or Wednesbury unreasonableness which would enable this court to grant an order of certiorari. This application for judicial review is therefore dismissed, with no order as to costs. Date: 22 December 2023 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam Counsel: For the applicant: Vijayaletchumi a/p Muniandy, Tetuan Zarina G.T. Vanan Vijaya Advocates & Solicitors Unit 1E, First Floor, Wisma YPR, No. 1, Jalan 2/87 GA, Off Jalan Syed Putra, 58000 Kuala Lumpur. zgvv.legal@gmail.com + 06 017-2280 529 For the respondent: FC Ahmad Hanir bin Hambaly @ Arwi, Liyana binti Muhammad Fuad Bahagian Guaman, Jabatan Peguam Negara No. 45, Persiaran Perdana Presint 4, 62100 Putrajaya +6 03 8872 2000