Shenmuga Sundrum A/L Muniandy v 1. ) Datuk Dr. Noor Hisham Bin Abdullah Pengerusi Lembaga Tatatertib Kumpulan Sokongan (No. 1), Jabatan dan Institusi, Kementerian Kesihatan Malaysia (BA-25-104-09/2019)

DATUK DR. NOOR HISHAM BIN ABDULLAH PENGERUSI LEMBAGA TATATERTIB KUMPULAN SOKONGAN (NO. 1) JABATAN DAN INSTITUSI

LEMBAGA TATATERTIB KUMPULAN SOKONGAN (NO. 1) KUMPULAN SOKONGAN (NO. 1) JABATAN DAN INSTITUSI,

PENGERUSI LEMBAGA RAYUAN TATATERTIB PERKHIDMATAN AWAM

LEMBAGA RAYUAN TATATERTIB PERKHIDMATAN AWAM,

KERAJAAN MALAYSIA …RESPONDEN-RESPONDEN GROUNDS OF JUDGEMENT [1] This is an application for judicial review by the applicant, Shenmuga Sundrum A/L Muniandy against the respondents for dismissing the applicant from his employment arising from a disciplinary proceeding. The applicant sought, among others, a certiorari to quash the decision of the respondents. Background [2] The facts of this case as garnered from the submission of parties and the affidavits filed are as follows. [3] A disciplinary proceeding held on 17.06.2013 imposed a punishment of ‘admonishment’ on the applicant for being absent from work without leave, prior approval or reasonable excuse for 15 days between September and November 2012. [4] A second disciplinary proceeding held on 05.11.2015 imposed a punishment of ‘forfeiture of emolument’ on the applicant for being absent from work without leave, prior approval or reasonable excuse for 7 days between November to December 2014. [5] Subsequently, for the entire month of November, December 2016 until 20.02.2017, the applicant was absent from work continuously. [6] An Order to Return for Work with immediate effect was issued on 19.01.2017 and delivered to the last known address of the applicant. [7] The applicant submitted Medical Certificates (‘MC’) issued by private clinics on 13.03.2017. The MCs did not cover all the days the applicant did not turn up for work. Even with the MCs produced, there were 28 days of absence which were unaccounted for between 01.11.2016 and 20.02.2017. [8] On 31.07.2017, an order for deduction and pay-back of salary for the days on which the applicant was absent from work which were unaccounted for by the MCs (28 days in total) was issued pursuant to Peraturan 27(1) and 27(3) Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993. [9] On 04.05.2018 the first respondent certified that a prima facie case was established against the applicant for the said 28 days of absence. [10] The first respondent had considered factors, such as the length of service of the applicant and the past disciplinary actions taken against the applicant. [11] A Show Cause Letter dated 04.05.2018 was issued to the applicant. The two previous disciplinary punishments imposed on the applicant were also set out in the said Show Cause Letter. [12] On 16.08.2018, the second respondent received the applicant’s representation dated 05.06.2018 and comments by the applicant’s supervisors [13] On 03.09.2018 having found that the applicant failed to exculpate himself from the charges, the second respondent imposed the punishment of ‘dismissal’ on the applicant. This is pursuant to Peraturan 38(g) Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993. The dismissal decision was conveyed to the applicant vide letter dated 02.10.2018 [14] On 02.10.2018 the applicant received the dismissal decision. [15] The applicant appealed against the second respondent’s dismissal decision to the fourth respondent vide a Letter of Appeal dated 05.11.2018. [16] On 08.04.2019 the fourth respondent dismissed the appeal. The decision was conveyed to the applicant vide letter dated 16.04.2019 Grounds for Judicial Review [17] The grounds for this judicial review as put forth by the applicant are as follows: “ISU 1 – “Sama ada tindakan tatatertib terhadap pemohon tidak menurut undang-undang yang terpakai pada masa yang material dan melanggar Perkara 5(1) Perlembagaan Persekutuan?” ISU 2 – “Sama ada terdapat perlanggaran prinsip keadilan asasi apabila rekod kesalahan lampau telah diambilkira dalam membuat keputusan?” ISU 3 – “Sama ada terdapat perlanggaran prinsip keadilan asasi apabila tindakan tatatertib terhadap pemohon turut diasaskan dengan alasan tambahan lain yang tidak dipertuduhkan?” ISU 4 – “Sama ada terdapat perlanggaran prinsip keadilan asasi apabila pihak berkuasa tatatertib telah bergantung kepada ‘additional damaging and prejudicial documents’ tanpa memberikan peluang kepada pemohon untuk ‘explain or rebut?” ISU 5 – “Sama ada terdapat perlanggaran prinsip keadilan asasi kerana gagal menubuhkan satu Jawatankuasa Penyiasatan apabila terdapat 2 versi dan/atau gagal memberikan pendengaran lisan walaupun telah dipohon?” ISU 6 – “Sama ada prinsip “Wednesbury Unreasonableness’ dan ‘Doctrine of Proportionality’ terpakai dalam kes pemohon?” ISU 7 – “Sama ada wujud ‘condonation’ dalam kes pemohon?” ISU 8 – “Sama ada wujud perlanggaran prosedur dan prinsip keadilan asasi di atas kegagalan memberikan alasan keputusan?”” Legal Principles relating to Judicial Review [18] Before this court proceeds to consider this case, it would be prudent to consider the legal principles relating to an application for judicial review. [19] Order 53 of the Rules of Court 2012 provides for the procedures for an application for judicial review. [20] It is trite law that a decision in relation to the exercise of public duty or function may be reviewed on grounds of illegality, irrationality, procedural impropriety or disproportionality. [21] These grounds were laid down by Lord Diplock in the case of Council of Civil Service Unions & Ors v Minister of Civil Service [1985] AC 374 which was adopted by the Federal Court in the case of R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 as follows: “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 directly 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 a dispute, by those persons, the judges, by whom the judicial power of the state is exerciseable. By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the courts' exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v Bairstow [1956] AC 14, of 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 failing 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.” [22] On the grounds for judicial review, see also the cases of Akira Sales & Services (M) Sdn Bhd v. Nadiah Zee Abdullah & Another Appeal [2018] 2 CLJ 513; [2018] 2 MLJ 537; and R Rama Chandran v. Industrial Court Of Malaysia & Anor [1997] 1 CLJ 147. [23] Further, in the case of Syarikat Kenderaan Melayu Kelantan v. Transport Workers Union [1995] 2 CLJ 748; [1995] 2 MLJ 317, the error of law has been described as follows: “It 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 an Anisminic error) or if he misconstrues the terms of any relevant statute, or misapplies or misstates a principle of the general law.” [24] Founded on the principles of judicial review, this court will proceed to consider the grounds raised by the applicant in this case.

Whether the disciplinary proceedings against the applicant was not according to the law at the material time and in contravention of Article 5 (1) of the Federal Constitution [25] In relation to this ground it was submitted by the applicant that the regulations in force at the time of the disciplinary proceedings against the applicant was Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) (Pindaan 2002) (P.U.(A)246/2002) and not regulation Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993 (P.U.(A)395/1993). Therefore, it was argued by the learned counsel for the applicant that since the disciplinary proceedings were based on regulation P.U.(A)395/1993 which was not in force at the time of the disciplinary proceedings, hence the decision to dismiss the applicant was illegal. [26] This court has perused both the said regulations. Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) (Pindaan) 2002 (P.U.(A)246/2002) is an amending regulation. The intention of an amending regulation is to amend the main regulations. In other words, P.U.(A)246/2002 made amendments to the existing P.U.(A)395/1993 regulations. [27] What this means is that the 1993 regulations, P.U.(A)395/1993 is still in existance and in force. The 2002 amendment regulations P.U.(A)246/2002 are incorporated into the P.U.(A)395/1993. This court is therefore satisfied that this ground is baseless.

(ii) Whether there was contravention of the principles of natural justice when the applicant’s previous records were taken into consideration in coming to a decision

(iii) Whether there was a contravention of natural justice when the disciplinary proceedings against the applicant included additional grounds for which he was not charged with

(iv) Whether there was contravention of the principles of natural justice when the disciplinary panel relied on additional damaging and prejudicial documents without giving the applicant an opportunity to explain or rebut;

Whether there was contravention of the principles of natural justice when an investigation committee was not established when there were 2 versions and/or failed to give the opportunity to be heard even though it was requested [28] For the grounds raised in paragraphs (ii) (iii) (iv) and (v) above, this court has reduced this into one main ground which is that the disciplinary proceedings did not adhere to the principles of natural justice. [29] The facts before this court demonstrate that a Show Cause Letter dated 04.05.2018 was issued to the applicant. In the Show Cause Letter the applicant’s previous two disciplinary punishments imposed on the applicant were included. [30] On 16.08.2018, the second respondent received the applicant’s representation dated 05.06.2018. In his representation, the applicant stated that he had applied for annual leave for those 28 days but his application was not supported by his supervisor. The applicant also stated that he had attended orthopedic medical appointments at Hospital Pantai Ipoh and Hospital Raja Permaisuri Bainun Ipoh on those 28 days. The applicant further stated that his salary for those 28 days had been forfeited/deducted/repaid. The applicant sought that disciplinary action not be taken against him and the applicant promised not to repeat the mistake in future. [31] On 03.09.2018 having found that the applicant failed to exculpate himself from the charges, the second respondent imposed the punishment of ‘dismissal’ on the applicant. The applicant received the dismissal decision on 02.10.2018. [32] In coming to the decision that the applicant had not exculpated himself, the disciplinary board, among others, had found that the applicant’s leave application made to his supervisor was not in compliance with the standard procedure. It was also found that the applicant’s attending follow up medical appointments at the Hospital (on days for which he was absent) was not supported by any prior leave application or medical appointment records. [33] The applicant appealed against the second respondent’s dismissal decision to the fourth respondent vide Letter of Appeal dated 05.11.2018. To support his appeal to the fourth respondent, the applicant had apologised and claimed to have repented for his mistake. The applicant then went on to state that he was married with 3 children of which 2 of whom are still schooling, that he still needs to attend medical follow up at the hospital, that he had other personal/family hardship arising from the dismissal. [34] The applicant further stated that his long service of 23 years in the public service and the loss of pension and gratuity as a result of the dismissal. The applicant stated that he was not accorded a hearing before the disciplinary board to explain the difficulties and reasons for his absence from work and that he is willing to be demoted to a lower rank for so long as he is not dismissed from public service. [35] On 08.04.2019 the fourth respondent dismissed the appeal. The decision was conveyed to the applicant vide letter dated 16.04.2019. In dismissing the appeal by the applicant, the fourth respondent had considered, among others, that there was no good reason to disturb or overturn the decision of the second respondent, that the appeal and the grounds were not supported by any cogent evidence and that the applicant had admitted to the disciplinary infractions in the Letter of Appeal. [36] With regard to the disciplinary procedure, it was argued that the applicant was not given the opportunity of a hearing before the disciplinary board. It is a principle of natural justice that that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them. [37] In the case of Ridge v Baldwin [1964] AC 40, the House of Lords held that prior to dismissal, the Chief Constable was entitled to notice of the charge and an opportunity to be heard. [38] In Najar Singh v Government of Malaysia [1976]1 MLJ 203, the Privy Council held Regulation 27 of Chapter D is not to be interpreted as imposing a requirement for the oral hearing. What is required is the opportunity to the individual to state his case. Viscount Dilhorne stated: “In this passage which was cited by counsel on behalf of the appellant, the context shows that the words ‘being heard’ meant ‘being heard orally’ but this passage is no support for the proposition that unless there is an oral hearing, there is denial of natural justice. Indeed, it points in the opposite direction.” [39] See also the cases of Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utra Badi Perumal [2001] 2 MLJ 417 and Ghazi Mohd Sawi v Mohd Haniff Omar, Ketua Polis Negara, Malaysia & Anor [1994] 2 MLJ 114. [40] In the case before this court, the applicant was afforded the opportunity to make a representation to answer to the charges made against him. He had, in the considered view of the court, been given the opportunity to be heard when he was afforded the chance to make a representation, albeit a written one. There is not requirement, in the considered view of this court that the right to be heard must be an oral right to be heard. Hence, in the considered view of this court, the applicant had been given the opportunity to be heard. [41] In this case, the disciplinary proceedings had made set out the charges against the applicant. The applicant was given sufficient time to respond the charges against him. [42] Having sieved through the facts of this case, this court finds nothing to suggest a breach of the principles of natural justice. The applicant was given the opportunity make representation. That was ample time for the applicant to answer to the charges and the charges against the applicant were properly set out. This court is therefore satisfied that there is no breach of the principles.

(vi) Whether the principles of Wednesbury Unreasonbleness and doctrine of proportionality is applicable in the applicant’s case [43] It was argued by the applicant that the decision of the disciplinary authorities was irrational that there was an anisminic error. It was contended that relevant consideration were not considered by the disciplinary authorities. These includes the fact that the applicant had applied for 28 day leave. For the 28 days which the applicant had applied for leave, his leave was not given supported by his supervisor. In this regard, the applicant was absent on all the 28 days without leave or prior approval. The facts before this court is that the applicant’s leave was not supported by his supervisor. In the view of this court, the fact that the applicant had applied for leave does not mean he is allowed to proceed to take his leave. The applicant’s leave application must be approved before the applicant can take his leave. In other words, if the applicant’s leave was not approved for whatever reason, he cannot take leave. Therefore, this court is satisfied this ground is without merit. [44] Moreover, having regard to the facts of this case, this court is satisfied that the respondents had considered all relevant considerations. Thus, this court finds this ground to be without merit.

(vii) Whether there was condonation [45] It was submitted that there was condonation when a delay in taking disciplinary action against the applicant. In other words, it was argued that a delay in acting on the part of the respondents would amount to condonation. [46] In this regard, taking into consideration the facts of this case, this court is of the considered view this does not amount to condonation.

(viii) Whether the was procedural non-compliance and the principles of human rights due to the failure to provide reasons for the decision. [47] It was argued by the applicant that there was no reason provided by the respondents for their decision and hence it amounted to an procedural non-compliance. [48] This court is of the view that there is no requirement for the respondents to provide the reasons for their decision. There is no general duty to give reasoned decision. Nonetheless, should there be a statutory requirement for the respondents to give reasons for a decision, then a reasoned decision should be accorded. [49] In this case, there is no statutory requirement to provide reasons for the decision. Hence, this court is satisfied this ground is baseless and without merit. Conclusion [50] For the abovementioned reasons, this court is satisfied this application for judicial review is without merit. Hence, this application is dismissed. No order as to costs. Date: 22 March 2023 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam Counsel: For The Applicant: Ebrina Binti Zubir Tetuan Maniam Nair & Co Advocates & Solicitors No. 117, Tingkat Dua, Jalan Genuang, 85000 Segamat, Johor maniamnair18@gmail.com +6 07 931 3675 For the Respondent: SFC Liew Horng Bin Jabatan Peguam Negara, Bahagian Guaman, Aras 6, No. 4, Persiaran Perdana, 62100 Putrajaya +6 03 8872 2000