SITI SUHANA BINTI SUID v 1. ) Suruhanjaya Perkhidmatan Awam Malaysia (WA-25-19-01/2024)

KERAJAAN MALAYSIA …RESPONDEN-RESPONDEN JUDGMENT [1] The applicant was appointed to the public service as an engineer (Grade J41) under the Automative Engineering Division in the Road Transport Department, Malaysia (“JPJ”). She was in service from 1.11.2013 until her dismissal by the 1st respondent, the Public Services Commission, effective on 25.9.2023. [2] The brief factual background that leads to this application for judicial review is as follows. [3] On 20.7.2022, the applicant received an e-mail from JPJ’s Managerial Group Disciplinary Board (No. 2) dated 15.7.2022 informing her that they had instituted a disciplinary action, not with the view of dismissal or reduction in rank, against her (“the 1st disciplinary proceeding”). [4] There were two charges were preferred against the applicant. The charges were in respect of her absence from duty after her approved leave without pay, which was from 2.10.2019 until August 2020. S/N nmUrlpb3q0qdCMLXX6DcxQ [5] On the 1st charge, the applicant was alleged to have failed to report for duty on 2.10.2019 after her approved leave without pay from 1.1.2015 to 1.10.2019. According to the charge, the applicant’s action could be construed as being irresponsible and insubordinate or conduct in any manner which could be reasonably construed as being insubordinate contrary to reg 4(2)(g) and reg 4(2)(i) Public Officers (Conduct and Discipline) Regulations 1993 (“the 1993 Regulations”). [6] As to the 2nd charge, the applicant was alleged to have failed to report for duty without leave or prior permission or without reasonable cause for 327 days from 2.10.2019 until August 2020. The Applicant’s said action could be construed as being irresponsible contrary to reg 4(2)(g) of the 1993 Regulations. [7] The applicant responded vide an email dated 22.8.2022, which enclosed a letter dated 21.8.2022 to the JPJ’s Managerial Group Disciplinary Board (No. 2) defending herself against the two charges. [8] However, on 16.11.2022, JPJ’s Managerial Group Disciplinary Board (No. 2) found the applicant guilty of both charges against her (“the 1st impugned decision”). The Applicant was punished with a warning pursuant to reg 38(a) of the 1993 Regulations and a reduction of salary under reg 38(e) for both charges respectively. [9] Dissatisfied with the punishment, on 30.11.2022, the applicant appealed against the applicant appealed against the decision of the S/N nmUrlpb3q0qdCMLXX6DcxQ JPJ’s Managerial Group Disciplinary Board (No. 2) to the 1st respondent in its capacity as the Disciplinary Appeal Board. [10] There was no response on the outcome of the applicant’s appeal. In short, her appeal is still pending. [11] In February 2023, the applicant’s husband, who is an officer in the Ministry of Foreign Affairs (“MOFA”), received instructions from MOFA that he would be posted back to Wisma Putra, Putrajaya. [12] The applicant, who had accompanied her husband overseas during her absence from duty all this while, informed JPJ of this and that she would report back for duty on 24.2.2023, which she did. [13] The applicant then resumed her duties as before and was paid her salary as usual. The 2nd disciplinary action [14] While the applicant’s appeal against the decision of the JPJ’s Managerial Group Disciplinary Board (No. 2) was still pending, on 13.4.2023, almost two months after the applicant reported back for duty, she received a letter from the 1st respondent informing that they have instituted a disciplinary action, with the view of dismissal or reduction in rank, against her. [15] This time, the 1st respondent preferred one charge against the applicant, alleging that the following can be construed as her being irresponsible contrary to reg 4(2)(g) of the 1993 Regulations. S/N nmUrlpb3q0qdCMLXX6DcxQ [16] In defence of the charge, the Applicant sent a representation letter dated 10.5.2023 to the 1st respondent. [17] On 16.10.2023, the Applicant received a memo enclosing the 1st respondent’s decision dated 11.10.2023. The 1st respondent found her guilty of the charge against her and dismissed her effective from 25.9.2023 (“the 2nd impugned decision”). [18] Her last day on duty was 16.10.2023. [19] It was only on 9.2.2024 that the applicant received a letter dated 9.1.2024 in respect of her appeal on the 1st disciplinary proceeding. The Disciplinary Appeal Board informed the applicant that it could not proceed with the hearing of the appeal against the 1st impugned decision in view of her dismissal on 25.9.2023 [20] Aggrieved by her dismissal, the applicant commenced this application judicial review application to challenge the same. Leave to commence judicial review was granted by this Court on 28.2.2024. Application for a Stay in Encl 9 [21] By way of an application in Encl 9, the applicant seeks an order to stay the impugned decision pending the full and final disposal of the substantive judicial review. S/N nmUrlpb3q0qdCMLXX6DcxQ [22] The applicant also filed a Notice of Intention to Use Affidavit in Encl 10, where she relied on her earlier affidavit in support in Encl 3 (“AIS-3”) and a further affidavit in Encl 5 (“AIS-5”). [23] Let me begin by stating the law. The High Court in Godfrey Philips (Malaysia) Sdn Bhd v Timbalan Ketua Pengarah Kesihatan (Kesihatan Awam), Kementerian Kesihatan Malaysia [2011] 9 CLJ 670, held that there is a distinction between a stay of execution of a decision of a public body and a stay of execution of a judgment of a court. An attempt to equate the two processes would be inappropriate. [24] According to the learned Judge, to obtain a stay in pending the determination of judicial review, which is housed in O 52 r 3(5) of the Rules of Court 2012 (“ROC”), an applicant must establish:

she is likely to succeed on the merits;

she is likely to suffer irreparable harm in the absence of stay;

the balance of equities tips in her favour; and

a stay is in the public interest. In exercising its discretion, the court should pay particular regard to the public consequences in granting the orders sought by the applicant. The reason is that the applicant, as in this case, in essence, is asking the Court to prohibit a public authority from acting on the 2nd impugned decision. S/N nmUrlpb3q0qdCMLXX6DcxQ [25] The proposition in Godfrey Philips was approved by the Court of Appeal in Tan Bun Teet & Ors v Menteri Sains, Teknologi dan Inovasi Malaysia & Ors [2013] 3 MLJ 676.

The applicant’s ground for the stay application is anchored on the existence of special circumstances. The special circumstances, as affirmed The 2nd disciplinary action was initiated even though the applicant’s appeal to the Disciplinary Appeal Board against the 1st impugned decision has yet to be determined and disposed of;

The 1st respondent’s decision is unfair since the applicant was not allowed to resume work as usual as soon as she returned to Malaysia from overseas. The applicant was never suspended from her duty until her eventual dismissal.

The applicant suffered hardship since she had to rely on her husband’s salary.

The applicant’s reputation is negatively affected as she is prejudiced and her constitutional right to livelihood has been breached. [26] by the applicant in para 10 of AIS-5, are as follows: [27] Before me, learned counsel for the applicant submitted that the 1st respondent’s conduct in allowing the applicant to return to duty despite being fully aware of her alleged misconduct amounted to condonation. S/N nmUrlpb3q0qdCMLXX6DcxQ Analysis [28] During the oral submission before me, learned counsel for the applicant conceded that a stay of the 2nd impugned decision would effectively mean that the applicant is reinstated. However, learned counsel contended that, in actuality, a stay would only have the effect of temporarily suspending the 2nd impugned decision. This – learned counsel submitted – should be distinguished from the intended outcome of the substantive judicial review, which is to quash the 2nd impugned decision permanently. [29] I do not think that it is in dispute that this Court has the discretion to grant a stay of the 2nd impugned decision pending the disposal of the substantive hearing of this judicial review. In addition to the specific provision in O 53 r 3(5), there is a plethora of authorities in the proposition that such a stay can be granted by this Court. [30] If at all there is any authority needed for the said proposition, it can be seen in the judgment of Ramly Ali J (later FCJ) in YAM Tunku Dato’ Seri Nadzaruddin Ibni Tuanku Jaafar v Datuk Bandar Kuala Lumpur & Anor [2003] 1 CLJ 210 where it was held that the phrase “a stay of proceedings” in relation to judicial review against the decision of a public body “must be a stay of the process by which the decision challenged had been reached, including the decision itself”. [31] In that sense, where appropriate, a stay in judicial review will be granted to first give meaning to the effectiveness of judicial review S/N nmUrlpb3q0qdCMLXX6DcxQ and, secondly, which is equally important so as not to deny the applicant the full benefit of a successful challenge. [32] In short, the stay, where appropriate, will be granted in circumstances where the status quo is to be preserved by suspending the impugned decision pending the determination of the substantive judicial review. [33] Having stated the law, the next question is whether the applicant has satisfied the ingredients stated in Godfrey Philips. For the purpose of this application for stay, I will not elaborate in detail on whether the applicant is likely to succeed at the substantive stage. I will assume that since leave has been granted, at the very least, the case against the respondents is not frivolous or vexatious. Once leave is granted, and there is no appeal on the granting of leave, an applicant has what Suriyadi FCJ said in delivering the judgment of the Federal Court in WRP Asia Pacific Sdn Bhd v Tenaga Nasional Bhd [2012] 4 CLJ 478 FC as “an arguable case in favour of granting the relief sought at the substantive hearing may be the resultant outcome”. [34] The next question is, will the applicant suffer irreparable harm if a stay is not granted? In this application for judicial review, the applicant seeks inter alia for the following order:

A declaration that the 2nd impugned decision is null and void and does not have the force of law;

An order of certiorari to quash the 2nd impugned decision; S/N nmUrlpb3q0qdCMLXX6DcxQ

An order in the form of mandamus to compel the respondents to reinstate the applicant in her last posting at the JPJ with Grade J41 without any loss of seniority, salary, increment, allowances, emoluments and all other benefits accorded to the said posting; and

A further order for the respondents to pay the applicant’s salary for the months of September and October 2023 and the remaining salary as if she had remained in her job until the determination of this judicial review. [35] On the assumption that the applicant succeeds in this judicial review based on the terms of her application, she would have been compensated for the arrears of her salary without incurring any monetary loss. However, on the assumption that a stay is granted, and the applicant fails in her application for judicial review to quash the 2nd impugned decision, the respondents would end up paying the salary, emoluments and other benefits to a legally dismissed employee. [36] I do not, with respect, think that it is in the public interest to grant an order for a stay in the circumstances. The balance of convenience therefore, lies in favour of the respondents. [37] In a judicial review application, the Court is empowered to award damages under O 53 r 5 ROC if it is pleaded in the Statement in support for leave under O 53 r 3(2). In para 4.1.5 of the Statement in Encl 2, the applicant prays for: S/N nmUrlpb3q0qdCMLXX6DcxQ

4.1.5 Suatu perintah bahawa Responden Pertama, Suruhanjaya Perkhidmatan Awam dan Responden Ke-2, Kerajaan Malaysia hendaklah membayar Pemohon, Siti Suhana binti Suid ganti rugi (damages) akibat daripada hukuman buang kerja dan/atau pelanggaran hak-hak beliau di bawah Perlembagaan Persekutuan. [38] Therefore, even if the applicant was successful in the judicial application, her grievance could still be addressed by the award of damages. There were no special circumstances to merit a stay on the 2nd impugned decision requested herein; see per Abu Bakar Jais J (now FCJ) in Professional Solutions Sdn Bhd v Pentadbir Tanah Seremban & Anor [2019] 3 CLJ 253. [39] So, even if I were to agree with learned counsel of the applicant, taking his argument at its highest, that the granting of stay does not amount to allowing the applicant her reliefs, which would put this application for judicial review to come to an end, the applicant still has failed to cross the threshold as stated in Godfrey Phillips. Findings [40] For the reasons aforesaid, my findings are as follows:

By virtue of O 53 r 3(5) of the ROC and well-established authorities, this Court is empowered to grant a stay in respect of the 2nd impugned order. S/N nmUrlpb3q0qdCMLXX6DcxQ

The basis for granting a stay is governed by the conditions stated in Godfrey Philips, as approved by the Court of Appeal in Tan Bun Teet.

In essence, the applicant still has to establish special circumstances.

The special circumstances include the fact that she is likely to suffer irreparable harm in the absence of a stay, the balance of equities tips in her favour and a stay is in the public interest.

On the facts, the applicant has failed to cross this threshold, as even if she were successful in the judicial review application, her grievances could still be addressed by awarding damages, which she has expressly pleaded in the Statement in Encl 2. [41] This application for a stay in Encl 9 is therefore dismissed with a nominal costs of RM1,000. Tarikh: 6 Jun 2025 (WAN AHMAD FARID BIN WAN SALLEH) Hakim Mahkamah Tinggi Kuala Lumpur. S/N nmUrlpb3q0qdCMLXX6DcxQ Pihak-pihak: Bagi Pihak Pemohon : Michael Cheah & Lee Yee Woei Tetuan Amerbon Bagi Pihak Responden : Muhammad Muhairi Mohamed Noh FC Jabatan Peguam Negara, Putrajaya S/N nmUrlpb3q0qdCMLXX6DcxQ