Sharipah Marhaini Binti Syed Ali v 1. ) Majlis Bandaraya Petaling Jaya (BA-25-62-09/2023)

MAJLIS BANDARAYA PETALING

AZNAN BIN HAJI HASSAN (dalam kapasitinya sebagai Setiausaha Majlis Bandaraya Petaling Jaya (“MBPJ”)) RESPONDEN-RESPONDEN 19/06/2025 15:03:47 Kand. 94 GROUNDS OF JUDGMENT [1] This is a judicial review application filed by the Applicant, Sharifah Marhaini Binti Syed Ali to challenge the decision made by the Respondents in respect of the Applicant’s position as the Secretary of the First Respondent. Reliefs Sought [2] The reliefs sought by the Applicant in this judicial review are reproduced below: “a. Suatu arahan dalam bentuk certiorari untuk membatalkan keputusan Responden Pertama dalam menurunkan jawatan Pemohon daripada Setiausaha Majlis Bandaraya Petaling Jaya (“MBPJ”) kepada Pengarah Jabatan Khidmat Pengurusan Secara Khas Untuk Penyandang; b. Suatu deklarasi bahawa Pemohon merupakan Setiausaha MBPJ terkini yang sah di sisi undang-undang; c. Suatu deklarasi bahawa keputusan kenaikan pangkat Pemohon ke jawatan Setiausaha MBPJ melalui surat yang dikeluarkan oleh Responden Pertama pada 27.09.2022 dikekalkan; d. Suatu arahan dalam bentuk mandamus yang mengarahkan Responden Pertama untuk mengembalikan jawatan Setiausaha MBPJ kepada Pemohon dan Pemohon dibenarkan memegang jawatan ini sehingga tarikh wajib persaraannya iaitu pada 05.10.2023; e. Gantirugi am ditaksirkan; f. Gantirugi teruk; g. Bahawa lain-lain relif lanjutan yang difikirkan suaimanfaat oleh Mahkamah Yang Mulia ini agar sesuai dengan fakta dan keadaan kes; dan h. Kos permohonan ini ditanggung oleh Responden-Responden.” Factual Background [3] The Applicant is a former Acting Mayor and Secretary of the First Respondent. [4] The First Respondent is a local authority, and a statutory body governed under the Local Government Act 1976 (Act 171) whilst the Second Respondent is the current Secretary of the First Respondent. [5] The Applicant had been a long-serving officer of the First Respondent since 1 November 1989 and had received several promotions over the course of her career, serving the First Respondent for approximately 34 years. On 20 May 2021, she was appointed as the Secretary of the First Respondent by the State Secretary for a term of two (2) years, from 20 May 2021 to 19 May

During this tenure, she was also appointed as the Acting Mayor (Menanggung Kerja Jawatan Datuk Bandar) of the First Respondent for a maximum period of six (6) months, effective from 1 June 2021, until a new mayor was appointed. Subsequently, on BA-25-62-09/2023 27 September 2022, her appointment as Secretary was confirmed as permanent by the First Respondent, to remain in effect until her retirement on 5 October 2023. [6] However, on 14 June 2023, while the Applicant was still serving as the Secretary of the First Respondent, the Second Respondent was appointed to the position of Secretary of the First Respondent. In light of this, the Applicant sought clarification from the Mayor of the First Respondent via an email on 23 June 2023. On 21 August 2023, the First Respondent informed the Applicant that she would be "placed as Director, Department of Management Services, under a Special Assignment for the Incumbent" (Pengarah, Jabatan Khidmat Pengurusan secara Khas Untuk Penyandang), effective retrospectively from 12 June 2023. [7] The Applicant was of the view this reassignment constituted a demotion from her position as Secretary of the First Respondent, and given that the Second Respondent had been appointed to the very role previously held by the Applicant, the Applicant filed an application for Judicial Review on 13 September 2023. Principles relating to Judicial Review [8] Prior to considering and analysing this application, it would be prudent for this court to be reflect on the legal principles relating to judicial review. Order 53 Rules of Court 2012 provides for the procedures for an application for judicial review. [9] It is trite that the decision of a public authority may be reviewed by this court on the grounds of illegality, irrationality, procedural impropriety or disproportionality. This review is not confined to the decision-making process but also to the merits of the decision [10] The Federal Court in Akira Sales & Services (M) Sdn Bhd v. Nadiah Zee Abdullah & Another Appeal [2018] 2 CLJ 513; [2018] 2 MLJ 537, had stated on the judicial review approach in R Rama Chandran v. The Industrial Court of Malaysia & Anor [1997] 1 CLJ 147; [1997] 1 MLJ 145 as follows: “[45] In the same appeal, Edgar Joseph Jr FCJ (Eusoff Chin in agreement) said that an award could be reviewed for substance as well as for process: It is often said that judicial review is concerned not with the decision but the decision making process. (See eg Chief Constable of North Wales Police v. Evans [1982] 1 WLR 1155). This proposition, at full face value, may well convey the impression that the jurisdiction of the courts in Judicial Review proceedings is confined to cases where the aggrieved party has not received fair treatment by the authority to which he has been subjected. Put differently, in the words of Lord Diplock in Council of Civil Service Unions & Ors v. Minister for the Civil Service [1985] AC 374, where the impugned decision is flawed on the ground of procedural impropriety. But Lord Diplock’s other grounds for impugning a decision susceptible to Judicial Review make it abundantly clear that such a decision is also open a challenge on grounds of ‘illegality’ and ‘irrationality’ and, in practice, this permits the courts to scrutinise such decisions not only for process, but also for substance. In this context, it is useful to note how Lord Diplock (at pp. 410- 411) defined the three grounds of review, to wit, (i) illegality, (ii) irrationality, and (iii) procedural impropriety. This is how he put it: By ‘illegality’ as a ground for Judicial Review, I mean that the decision maker must understand correctly the law that regulates his decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable. By ‘irrationality’, I mean what can by now be succinctly referredto 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. I have described the third head as ‘procedural impropriety’ rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. Lord Diplock also mentioned ‘proportionality’ as a possible fourth ground of review which called for development.” [11] The meaning of error of law has also been explained in the case of Syarikat Kenderaan Melayu Kelantan Bhd v. Transport Workers Union [1995] 2 CLJ 748; [1995] 2 MLJ 317 in the following words: “Is neither feasible nor desirable to attempt an exhaustive definition of what amounts to an error of law, for the categories of such an error are not closed. But it may be said that an error of law would be disclosed if the decision-maker asks himself the wrong question or takes into account irrelevant considerations or omits to take into account relevant considerations (what may be conveniently termed Anisminic error) or if he misconstrues the terms of any relevant statute, or misapplies or misstates a principle of the general law.” Analysis and Findings [12] The reliefs in paragraphs 1 to 4 of this judicial review application are now academic as the Applicant has since retired on 5 October 2023. Therefore, the issue to be decided is whether damages should be awarded to the Applicant if this judicial review is decided in the Applicant’s favour. [13] This court will proceed to consider this application for judicial review based on the principles enunciated in the authorities cited. [14] The position of the Respondents is that the Applicant is not a public officer within Article 132 and Article 135 of the Federal Constitution. The Applicant, according to the Respondents, entered into the contract of employment under the First Respondent’s “power of a body corporate”. The Respondents further quoted the terms in the letter of offer of the First Respondent in the First Respondent’s Additional Affidavit in Encl. 63 to support their contention that the Applicant is bound by the rule, circular and order of the First Respondents. In support of the above proposition, the Respondents cited the case of Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol, Negeri Sembilan [1997] 3 CLJ 135. [15] With respect to the Respondents, the excerpt quoted by the learned counsel for the Respondents must be considered in the overall context of the Federal Court’s findings in the case of Mohd Ahmad (supra). The Federal Court in finding that the appellant there is not a public officer under Articles 132 and Articles 135 of the Federal Constitution, together with other reasons, decided that the lower court should determine if the appellant’s dismissal was wrongful or improper and where necessary, to assess damages. It was in that context the Federal Court found that, if the appellant was wrongfully dismissed, the only remedy available to him is the remedy of damages and not reinstatement. The Federal Court there was not tasked with the duty to determine if the decision of the local authority in dismissing the appellant is or is not susceptible to judicial review. [16] It is observed that the Applicant was appointed under subsection 16(4) of the Local Government Act 1976. This is conceded by the Respondents in para 34 of their submissions (Encl. 73), albeit on the footing that it is a “contract of employment”. [17] The Applicant in her Affidavit in Support averred that she was promoted to the position of the Secretary of the First Respondent, and the promotion was based on the Waran Perjawatan Bilangan 6 to 9 tahun 2021 (see para 10 – 11, Encl. 3 and Ekshibit SH-3 and Ekshibit SH-4, page 14 – 21, Encl. 3). This was admitted by the First Respondent (see para 10 of Encl. 49). [18] Ekshibit SH-3 is entitled “Penyiaran di bawah Peraturan 18(1), Peraturan-Peraturan Lembaga Kenaikan Pangkat Perkhidmatan Awam, 2010” and subjected “Keputusan Urusan Pemangkuan dan Kenaikan Pangkat Puan TPR. …”. [19] The First Respondent failed to explain, if the promotion of the Applicant to the position of secretary is purely private contract, the necessary for the notification by the Pihak Berkuasa Melantik under regulation 18(1) of the Public Services Promotion Board Regulations 2010. [20] In this view of this Court, this establishes the fact that the Impugned Decision was made pursuant to a statutory power. The matter is similar to the promotion of the Second Respondent to the position of the secretary (see Ekshibit AHH-3, page 20, Encl. 64). [21] The promotion of the Applicant, and subsequently the placement of the Applicant as the Director of the Jabatan Khidmat Pengurusan secara Khas Untuk Penyandang together with the promotion of the Second Respondent, when viewed as a whole, revealed the exercising of statutory power, and was therefore infused with public element, making the instant application susceptible to judicial review. [22] Nevertheless, the contention of the First Respondent fails on its own when the case cited by the learned counsel, the case of Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai & Anor v Mohd Sobri Che Hassan [2020] 1 ILR 286, the Federal Court found: “[99] Thus, at the risk of repetition, a case of dismissal involving public employees especially where the procedure for dismissal is regulated by statute, is governed by public law and therefore amenable to public law remedies. This is unlike the case with ordinary employment contracts which fall within the scope of contract and labour laws. … [100] As far as we are concerned, there is no practical distinction between those in the employ of the public services in art. 132 of the Federal Constitution and those employed in statutory authorities where there is an express guarantee of the right to be heard protected by statute - much like the one guaranteed to the respondent in s. 16(4) of the LGA 1976.” [23] The Respondents further argued that there is a misjoinder of parties. The Respondents argued that the correct party to be named should be the Pihak Berkuasa Melantik. The Applicant had failed to name “the real decision maker” i.e. the Pihak Berkuasa Melantik who is a separate decision making-authority. The First Respondent and the Second Respondent did not make any decision amenable for the instant application for judicial review. [24] Citing section 2 of the Local Government Act 1976 which states that “secretary means the Chief Administrative Officer appointed by the State Authority …”, the Respondents hold the view that the State Authority or the State Government should be named. [25] In this regard, it is observed that the Applicant through her Affidavit in Support averred that, and admitted by the First Respondent, the promotion of the Applicant to the position of the secretary is based on Waran Perjawatan Bilangan 6 to 9 tahun 2021. [26] Subsection 16(1) of the Local Government Act 1976 provides:

The local authority shall, once in every year before or at the time of submission to the State Authority of the Local Authority Budget under section 55, submit to the State Authority for its approval a list of the offices which the local authority thinks necessary for the purpose of this Act with the salaries and allowances, if any, proposed to be attached to such offices respectively. [27] Based on the list, the Mayor, the Secretary and one other Councillor may appoint such persons to the offices shown on the list, by virtue of subsection 16(4) of the Local Government Act 1976 as follows: “(4) The Commissioner of the City of Kuala Lumpur in the case of the Federal Territory, or the Mayor or President or his representative who shall be a Councillor, the Secretary and one other Councillor in the case of other local authorities, may appoint such persons to the offices shown on the list so approved and may reduce in rank or dismiss such persons from office and may appoint others in their stead:” [28] As the promotion of the Applicant is from the list pursuant to subsection 16(4) of the Local Government Act 1976, the term “secretary” in the instant application cannot be said to be equated with the term “secretary” as defined in section 2 of the Local Government Act 1976. It follows that the Applicant cannot, based on this provision alone, be argued to have been appointed by the State Authority. [29] Moreover, the Applicant’s promotion letter to the position of secretary of the First Respondent reveals that such letter was undersigned by the Chairman of the Pihak Berkuasa Melantik of the First Respondent (see page 15 of Encl. 3). There is no indication from the letter which revealed that the promotion was made under the direction of the State Authority, or that the First Respondent merely conveyed the decision of the State Authority or that the First Respondent was acting for the State Authority. The same is also true if one is to look at the promotion letter of the Second Respondent. [30] If the decision for the promotion of the Second Respondent and the placement of the Applicant was made by the State Authority, there is no explanation on the part of the Respondents as to the role of the State Authority in the decision-making process. It light of the clear statutory provision of subsection 16(4) of the Local Government Act 1976, the attempts of the Respondents in involving the State Authority is baseless. [31] Pertaining to whether the Applicant should have named the Pihak Berkuasa Melantik, it cannot be overlooked that while the Respondents vehemently argues on this point, the Respondents failed and/or neglected to cite or quote any statutory provision to indicate that the Pihak Berkuasa Melantik is a separate entity to the First Respondent. This is unlike the cases where the dismissal of a public officer is made by the Disciplinary Board appointed by its relevant regulation. [32] The mere fact that there must be a “full board meeting” does not fill the lacuna in the Respondents argument. There is no separate entity and/or board, governed under separate regulations, to deal with the promotion and/or placement of the Applicant. [33] This court therefore finds the Applicant is not incorrect to cite the First Respondent instead of the Pihak Berkuasa Melantik. [34] It is observed from the Affidavit in Reply filed by the First Respondent that there is no attempt or explanation as to how the Impugned Decision was derived. Paragraph 12 of Encl. 49 merely explains the fact that the First Respondent received an email approving the plan to replace the secretary of the First Respondent with the Second Respondent, and in para 14, it defended “Perlantikan Responden Kedua oleh Pihak Berkuasa Negeri sebagai Setiausaha responden Pertama bermula 14 June 2023 sehingga kini adalah sah dan teratur menurut peruntukkan Akta 171” and criticised the failure of the Applicant to name the State Authority. [35] The Respondents submit that the Applicant was never demoted. The Applicant was said to continue to receive the same emolument and benefits as her previous post. It was submitted by the Respondents that the Applicant was merely “reassigned to a different department”. [36] In this regard, this court alluded to the case of CIMB Bank Bhd v Ahmad Suhairi bin Mat Ali & Anor [2023] 5 MLJ 829, the Court of Appeal, through Nantha Balan JCA, held the following: “[142] It is axiomatic that an employer’s exercise of their management prerogative to transfer and/or re-designate an employee can be struck down if it is demonstrated that the transfer/re-designation is in substance a demotion or a punishment or that the employee is being victimised or that the decision is actuated by mala fides. [37] In the considered view of this court, the Respondents’ decision to “reassign the Applicant to a different department” in effect constitutes a demotion. This is because as Secretary of the First Respondent, the Applicant previously reported directly to the Mayor. However, in her new role as Pengarah, Jabatan Khidmat Pengurusan secara Khas Untuk Penyandang, the Applicant is now required to report to the Second Respondent, who currently holds the position that was formerly held by the Applicant. In terms of reporting mechanisms, the Applicant is now reporting to someone below the rank of Mayor, thus it would appear her position has been reduced. [38] Moreover, the position of Pengarah, Jabatan Khidmat Pengurusan secara Khas Untuk Penyandang is classified as a Head of Department (HOD) role, of which there are 12 equivalent positions. In contrast, the Secretary of the First Respondent is a unique and singular post. [39] It is also a fact that the Applicant queried on 23 June 2023 which was only responded 2 months later on 21 August 2023. [40] Another issue is whether the Applicant was afforded the right to be heard when she was demoted? [41] In this regard, subsection 16(4) of the Local Government Act 1976 reads as reproduced below: “The Commissioner of the City of Kuala Lumpur in the case of the Federal Territory, or the Mayor or President or his representative who shall be a Councillor, the Secretary and one other Councillor in the case of other local authorities, may appoint such persons to the offices shown on the list so approved and may reduce in rank or dismiss such persons from office and may appoint others in their stead: Provided that the reduction in rank or dismissal from office of any Head of Department or his Deputy shall not take effect until such reduction in rank or dismissal has been confirmed by the State Authority: Provided further that no officer or employee shall be reduced in rank or dismissed without being given a reasonable opportunity of being heard.” [42] The Applicant submitted that she was not afforded the right to be heard when she was demoted by the Respondents and thus is in breach of the fundamental principles of natural justice. [43] In the case of Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai & Anor v Muziadi Mukhtar [2020] 1 CLJ 1, the Federal Court through the judgement of Mohd Zawawi Salleh FCJ held the following: [56] It is clear beyond argument that the second proviso to s. 16(4) of the LGA codifies one of the fundamental precepts of the natural justice, ie, the legal maxim audi alteram partem. The principle simply provides that a person should be given the opportunity to be heard before the decision that adversely affects him or her is made (see R v. Chief Constable of North Wales Police, Ex parte Evans [1982] 1 WLR 1155 (HL), R v. Army Board of Defence Council, Ex parte Anderson [1992] QB 169; The Secretary of State for the Home Department, Ex parte Doody [1994] 1 AC 531 (HL)). [57] The importance of the principle of audi alteram partem cannot be overemphasised; it affords an aggrieved person the opportunity to participate in the decision that will affect him or her by influencing the outcome of the decision. The participation of an aggrieved person in the process of decision-making constitutes a safeguard that not only signals respect for the dignity and worth of the participants but improves the quality and rationality of administrative decision-making and further enhances its legitimacy. Conclusion [44] For the aforementioned reasons, this court finds the conduct of the First Respondent to be unreasonable and/or illegal as the Second Respondent was appointed as the Secretary of the First Respondent while the Applicant was still the Secretary. It cannot be that there are two secretaries to the First Respondent at the same time or concurrently. Whatever the reason for this mistake or gaffe, the fact remain the Applicant was adversely affected by this decision. [45] This court further finds the Applicant was not accorded a right to be heard prior to the Applicant being removed as Secretary of the First Respondent. [46] This court therefore allows this application for judicial review. Parties are to submit on damages before this court makes a decision on the quantum. Date: (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam Counsels: For the Applicant: Ravindran A/l Nekoo @Veloo Aravinkumar A/L K.Mohan Messrs Nekoo Advocates & Solicitors Suite 8-15-3, Tingkat 15 Menara Mutiara Bangsar, Jalan Liku, Bangsar 59100 Kuala Lumpur info@nekoo.com.my For the Respondents: Kamaruzaman bin Muhammad Arif Sofiah binti Omar Tetuan Kamaruzaman Arif & Sofiah Crystal Chambers, No. 4, Jalan Kristal 7/67A, Seksyen 7, 40000 Shah Alam, Selangor