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

1 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN KUALA LUMPUR (BAHAGIAN KUASA-KUASA KHAS) PERMOHONAN SEMAKAN KEHAKIMAN NO.: WA-25-19-01/2024 Dalam perkara keputusan tatatertib Suruhanjaya Perkhidmatan Awam Malaysia (Ruj.: SPA.

1. SURUHANJAYA PERKHIDMATAN AWAM

2. KERAJAAN MALAYSIA … RESPONDEN-RESPONDEN (Dengar Bersama) DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN KUALA LUMPUR (BAHAGIAN KUASA-KUASA KHAS) PERMOHONAN SEMAKAN KEHAKIMAN NO.: WA-25-209-05/2024 Dalam perkara keputusan Lembaga Tatatertib Kumpulan Pengurusan No.2), Jabatan Pengangkutan Jalan Malaysia (Ruj.: JPJ.BI(S).500-4/10/42(46) bertarikh 16-11-2022 berkenaan Siti Suhana Binti Suid (No. K/P: 870330-56-5434); Dan Dalam perkara keputusan Lembaga Rayuan Tatatertib Suruhanjaya Perkhidmatan Awam Malaysia (Ruj.: SPA.

1. LEMBAGA TATATERTIB KUMPULAN PENGURUSAN (NO.2), JABATAN PENGANGKUTAN JALAN

2. SURUHANJAYA PERKHIDMATAN AWAM

3. KERAJAAN MALAYSIA … RESPONDEN-RESPONDEN GROUNDS OF JUDGMENT Introduction

1. Prior to her dismissal, the Applicant was in the public service of the Federation as an engineer on grade J41. She was attached to the Road Transport Department.

2. Disciplinary proceedings were instituted against her for her failure to turn up for work between the years of 2019 and 2023. The 1st disciplinary proceedings was instituted not with a view to dismissal or reduction in rank by the relevant disciplinary authority over her, namely Lembaga Tatatertib Kumpulan Pengurusan (No. 2). It concluded with the punishment of a warning and a reduction in salary for 36 months. She appealed to the Disciplinary Appeal Board against the decision.

3. The decision of the Lembaga Tatatertib Kumpulan Pengurusan (No. 2) and the Disciplinary Appeal Board is now the subject-matter S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 of challenge in Judicial Review Application WA-25-209-05/2024 (“JR 209”).

4. Following the 1st disciplinary proceedings, a 2nd one was instituted by the Public Services Commission with a view to dismissal or reduction in rank. The proceedings concluded with a dismissal.

5. The decision to dismiss her by the PSC is challenged in Judicial Review Application WA-25-19-01/2024. (“JR 19”).

6. Both cases have been directed to be heard together in view of the overlapping factual scenario. Salient facts

7. The primary facts upon which both JR 19 and JR 209 are premised upon are not in dispute. They are as follows.

8. The Applicant commenced employment in the public service on 1.11.2013 as an Engineer (Mechanical) Grade J41 in the Automative Engineering Division of the Jabatan Pengangkutan Jalan (“JPJ”). Sometime in 2015, the Applicant applied for leave without pay to accompany her husband overseas. He was then an officer in the Ministry of Foreign Affairs, who was posted to Harare, Zimbabwe. Her application was approved by the Director General of JPJ and she was allowed to be on no pay leave from 1.10.2015 until 1.10.2019. S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 6

9. Her husband then received an order to be posted to Santiago, Chile. As a result of the new posting the Applicant applied to extend her no-pay leave from 2.10.2019 to 17.7.2022. Her application was rejected and she was instructed to report back for duty on 2.10.2019.

10. She appealed to have the rejection re-considered. However, she was informed that she was to report for duty on 2.10.2019.

11. The Applicant disobeyed the directive to report for duty.

12. On 15.7.2022, the Applicant was issued a Show Cause Letter by the Lembaga Tatatertib Kumpulan Pengurusan (No. 2) (“JPJ DB”) containing 2 charges.

13. The essence was of the first charge was that she failed to report for duty on 2.10.2019 after her no pay leave ended on 1.10.2019. She was informed that her conduct was considered as irresponsible and insubordinate pursuant to Regulation 4(2)(g) and 4(2)(i) of the Public Services (Conduct and Discipline) Regulations 1993 (“1993 Regulations”).

14. The second charge stated that she failure to turn up for work from 2.10.2019 to August 2020 for a total of 327 days, which constituted a disciplinary breach under Regulation 4(2)(g) of the 1993 Regulations. The Applicant was instructed to make her representations to both the charges within 21 days from receipt of the Show Cause Letter. S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 7

15. By letter dated 21.8.2022, the Applicant made her representations to the JPJ DB. It is significant that she did not deny both the charges. She merely explained why she could not report for duty, primarily because of her domestic situation. She was required to take care of their children’s schooling and household matters, while her husband was at work. She also had to care for her husband who was a heart patient. Further, the Applicant could not afford the flight fare back to Malaysia.

16. On 16.11.2022, the JPJ DB made its decision and found that Applicant had failed to exculpate herself on both the charges. In respect of the first charge, she was given a warning and a salary reduction for a period of 36 months pursuant to Regulation 38(a) and 38(e) respectively. The same punishment was imposed for the second charge.

17. In the same letter, the JPJ DB also informed the Applicant that pursuant to Regulations 14 and 15(1) of the Public Service Disciplinary Board Regulations 1993 she could appeal to the Disciplinary Appeal Board (“DAB”) if she so wished, within 14 days from the date of receipt of the letter of 16.11.2022.

18. By letter dated 29.11.2022, the Appellant made her appeal to the DAB. In the meantime, the Applicant returned to work on 24.2.2023 at the Automative Engineering Division in JPJ.

19. However, a 2nd disciplinary proceedings was instituted against her commencing with a Show Cause Letter dated 13.4.2023. On this occasion, the Show Cause Letter was sent by the Public Services S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 Commission (“PSC”) being the Disciplinary Authority having jurisdiction to impose the punishment of dismissal or reduction in rank.

20. There was only one charge in the Show Cause Letter. She was charged with failing to turn up for work for 906 days commencing 1.9.2020 to 23.2.2023, which conduct constituted a disciplinary offence under Regulation 4(2)(g). She was instructed to make her representations to the charge.

21. By letter dated 10.5.2023 the Applicant made her representations to the charge. Again, like her previous representation in the 1st disciplinary proceedings, she did not deny her failure to turn up for work, but gave reasons for her absence.

22. On 11.10.2023, after considering the Applicant’s representations, the PSC made the decision to dismiss her with effect from 25.9.2023.

23. After she was dismissed, she received a decision pertaining to her appeal to the DAB against the decision of the JPJ DB in the 1st disciplinary proceedings. By letter dated 9.1.2024, she was informed as follows: “2. Lembaga Rayuan Tatatertib Perkhidmatan Awam tidak mempunyai bidang kuasa untuk menimbang dan memutuskan rayuan tatatertib puan terhadap keputusan Lembaga Tatatertib Kumpulan Pengurusan (No.2) Jabatan S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 Pengangkutan Jalan Malaysia kerana puan telah dibuang kerja berkuat kuasa pada 25.9.2023.

3. Keputusan Lembaga Rayuan Tatatertib Perkhidmatan Awam ini adalah muktamad.”

24. The Applicant is aggrieved by the decisions taken arising from the 1st and 2nd disciplinary proceedings against her. In JR 209, the decisions of the JPJ DB and the DAB are sought to be impugned, whereas in JR 19, the decision of the PSC is challenged.

25. The Applicant seeks the reliefs of certiorari to quash the decisions, and declarations that the said decisions are null and void. In addition, the Applicant seeks for an order of mandamus to direct that the Applicant be reinstated as an officer on grade J41 with immediate effect with no loss of allowances, emoluments and other pecuniary benefits. Finally, she also seeks to be paid all arrears of allowances, emoluments and other pecuniary benefits from 25.9.2023, being the date of her dismissal. Grounds for review

26. As the decision to dismiss the Applicant is a more serious punishment, I shall deal with the grounds for review in JR 19 first. JR 19

27. The decision of the PSC is alleged to be tainted with illegality, irrationality and procedural impropriety. S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 10

28. In support of the ground of illegality, the Applicant contends as follows:

(ii) Her guilt had been predetermined by the wordings employed in the Show Cause Letter;

(iii) The charge was defective as the number of days of absence included Saturday, Sunday and public holidays;

(iv) The JPJ DB failed to provide the relevant documents to the Applicant;

(vi) No reasons were given for the decision to dismiss her;

(vii) There was delay in commencing disciplinary action against the Applicant amounting to condonation; and S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 11

(viii) No opportunity was given for mitigation prior to imposing punishment of dismissal. JR 209

29. The same grounds of illegality, irrationality and procedural impropriety are relied on to challenge the decision of the JPJ DB to impose the punishment of a warning and reduction of salary for 36 months. In addition, the DAB decision is also challenged as being illegal. The cumulative reasons are as follows:

(ii) The two charges in Show Cause Letter of 15.7.2022 were bad for duplicity;

(iii) The second charge was defective as the number of days of absence included Saturday, Sunday and public holidays;

(iv) There was a failure to provide the relevant documents in relation to the charge against the Applicant;

(vi) The Applicant’s reasons for her absence from duty was not considered;

(vii) No reasons were given for the decision by the JPJ DB; and S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 12

(viii) The DAB had no jurisdiction to refuse to consider the Applicant’s appeal. Analysis and findings

30. I note that some of the grounds relied on are common to JR 19 and

209. That being the case, they will be dealt with as one common ground for both suits.

31. I shall start by dealing with the grounds in JR 19. Charge in the Show Cause Letter dated 13.4.2023 was illegal

32. To appreciate the submission of the Applicant, the Show Cause Letter of 13.4.2023 is reproduced as follows: S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 16

33. The Applicant takes issue with the first paragraph of the charge which refers to the proceedings before the JPJ DB. The Applicant claims that the Show Cause Letter and the charge therein was illegal and defective as it was predicated on the impugned decision by the JPJ DB.

34. To my mind, the Applicant has misconstrued the import of the Show Cause Letter. The first paragraph of the charge which referred to the disciplinary proceedings before the JPJ DB, was only a narrative, stating the background to the Show Cause Letter. It did not form part of the charge against the Applicant. There can be no effect or consequence arising from that paragraph. The disciplinary proceedings by the JPJ DB had already been concluded. Therefore, in my view, the first paragraph was nothing more than a mere statement of a factual scenario, stating the decision of the JPJ DB and the punishment imposed by it.

35. Although the heading “Pertuduhan” precedes this paragraph, it was but a prelude to the charge which followed thereafter. It clearly did not form part of the disciplinary offence she was charged with in the Show Cause Letter. There was no nexus between one and the other.

36. In short, it was stated as a mere antecedent event. Nothing turned on the first paragraph. By no stretch of imagination or reasonable construction can it be said that the charge in this Show Cause Letter was predicated on the decision of the JPJ DB. S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 17

37. The essence of the charge against her was contained in the second paragraph which was premised on her absence of 906 days. Having specified the particulars of the charge, she was then instructed to make her representations.

38. More importantly, the Applicant was not mistaken nor misled. In her letter of representation, she made no inquiry pertaining to the first paragraph of the Show Cause Letter. Neither were her representations premised on the first paragraph.

39. Instead, she responded to the charge therein by denying that she acted in an irresponsibly and proceeded to give her reasons for her absence; primary to care for her husband and children.

40. In the circumstances, I am left in no doubt that she understood the specific charge that she was to make her representations to, which had nothing to do with the JPJ DB decision.

41. I therefore find no merit to the Applicant’s contention that the charge was predicated on JPJ DB decision.

42. The Applicant also contends that when the Show Cause Letter of 13.4.2023 was issued, her appeal to the DAB against the JPJ DB decision was pending.

43. I am of the view that the pending appeal to the DAB is no bar to PSC instituting the disciplinary proceedings. The charges in the PSC proceedings were distinct and separate from the charges before the JPJ DB. They were in respect of different offences as S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 they pertain to different periods of absence. The PSC was not obliged to await the outcome of the DAB appeal in the earlier proceedings before commencing the disciplinary proceedings. Predetermination of guilt

44. The Applicant takes objection to the wordings employed in the Show Cause Letter of 13.4.2022. The Applicant contends that the phrase therein “Selanjutnya, puan didapati melakukan kesalahan tidak hadir bertugas tanpa cuti atau tanpa terlebih dahulu mendapat kebenaran atau tanpa sebab yang munasabah selama 906 hari….” is a predetermination of her guilt.

45. Again, the words used have been misconstrued. They must be viewed in its proper context. This was a Show Cause Letter issued under Regulation 37(2)(a) which provides as follows: Procedure in disciplinary cases with a view to dismissal or reduction in rank

37. (1) If it is determined under subregulation 35(2) that the disciplinary offence complained of against an officer is of a nature that warrants a punishment of dismissal or reduction in rank, the Chairman of the appropriate Disciplinary Authority to which the case is referred shall consider all the available information.

(2) If it appears to the Chairman of the appropriate Disciplinary Authority that there exists a prima facie case against the officer, the Chairman of the appropriate Disciplinary Authority shall— S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 19

46. Therefore, all that was meant in the Show Cause Letter was that the Chairman was satisfied that a prima facie case had been made out to warrant a dismissal or reduction in rank of the Applicant. The Applicant is then obliged to make representations to exculpate herself.

47. The phrase “…puan didapati melakukan kesalahan…” cannot be taken to mean she had been found guilty. It would be absurd to find her guilty at that stage as her representations had not even been made and considered. Charge included Saturdays, Sundays and public holidays

48. In making her representation to the Show Cause Letter, the Applicant did not raise the issue that her period of absence included Saturday, Sunday and public holidays. To raise it now as a reason to contend the charge was illegal appears to be an afterthought.

49. In my view, the inclusion of weekends and public holidays did not in any way affect the integrity or validity of the charge. Even if these S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 days have to be excluded as they are non-working days, the Applicant did not succeed in exculpating herself on the charge of not turning up for work on the other days. There was no denial by her of the charge, she merely proffered an explanation as to why she had to continue to be overseas, and hence did not turn up for work. Failure to provide the relevant documents in relation to the charge

50. The charge against the Applicant was a straightforward one. It was for failure to turn up for work. Sufficient particulars were stated in the Show Cause Letter. The total duration of her absence together with specific months and the number of days in each month was specified. The factual basis for the disciplinary offence she was charged with had thus been clearly stated.

51. There was therefore due compliance with Regulation 34(1) which provides as follows:

34. Conditions for dismissal or reduction in rank

(1) Subject to subregulation (2), no officer shall be dismissed or reduced in rank in any disciplinary proceedings under this Part unless he has first been informed in writing of the grounds on which such action is proposed and he has been afforded a reasonable opportunity of being heard.

52. More importantly, the Applicant did not request for documents to be furnished. Without any request from the Applicant, a Disciplinary Authority has no duty to furnish documents (See: Kerajaan S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 Malaysia & Ors v Tay Chai Huat [2012] 3 MLJ 149, Chai Kok Choi v Ketua Polis Negara & Ors [2008] 1 MLJ 725).

53. She did not at any time state she was unable to defend herself due to lack of documents. In any event, where a disciplinary proceeding is taken premised on absence from work, I fail to see what documents can possibly assist the Applicant to better prepare for her defence. The facts are within the knowledge of the Applicant herself.

54. I therefore find no merit on the contention that the Applicant was not furnished documents. Delayed in commencing disciplinary action against the Applicant

55. On 28.7.2022, the Applicant’s disciplinary breach was referred to the PSC to commence disciplinary proceedings with a view to dismissal or reduction in rank. The PSC then issued the Show Cause Letter on 13.4.2023. The Applicant contends that the delay of more than 6 mounts amounted to condonation.

56. To my mind, a lapse of 6 months can hardly be considered a delay as to amount to condonation. Disciplinary proceedings are not the core business of a government department. Before a Disciplinary Authority is convened, the necessary paperwork would have to be in place. S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 Due consideration not given to the Applicant’s reason for her absence

57. By her contention, the Applicant is in fact aggrieved at the punishment imposed. She contends that there were compelling reasons for her absence. The punishment was therefore disproportionate to the gravity of her disciplinary breach.

58. This issue whether the proportionality of a punishment is a matter for review has been settled by the Federal Court in the case of Ng Hock Cheng v Pengarah Am Penjara & Ors [1998] 1 MLJ 153. It held as follows: A public officer is entitled to impugn any allegation or accusation of any disciplinary breach against him by way of judicial review on the protection given by art 135 of the Federal Constitution which provides that no member of such service shall be dismissed or reduced in rank except: (a) only by an authority that appointed him in the first place; and

59. Having failed to exculpate herself on the charges, the punishment imposed upon her is a decision best left to the judgment of the Disciplinary Authority which best understands the needs of the department and the impact of the misconduct on the department. The punishment imposed is not for the court to review. The fact that the Applicant may have good reasons is irrelevant to this court in the exercise of its supervisory jurisdiction.

60. In any event, I am of the view that being absent from work is a disciplinary misconduct which is serious in nature. The duration of her absence is a relevant factor. A length of 906 days can hardly be considered to be inconsequential. It is a dereliction of duty and impacts the smooth operation of a government department. The Applicant was fully aware that her no pay leave had come to an end. Notwithstanding that fact, she continued to be away overseas and failed to report for work. I find the dismissal to be warranted. S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 Failed to give reasons for the decision to dismiss

61. There is no express provision in the 1993 Regulations imposing a duty to give reasons. The decisions of several cases have been instructive on this issue.

62. In Ezaky Mulya bin Sapawi v Dato’ Sri Nadzri Siron Pengerusi Lembaga Tatatertib Kumpulan Sokongan (No 1) Jabatan Pengangkutan Jalan Malaysia & Ors. [2022] 5 MLJ 472, the Court of Appeal held, [79] We add there is nothing in the disciplinary procedure in Discipline Regulations 1993 which requires reasons to be given. In particular, we refer to reg 34 on the conditions for dismissal or reduction in rank, reg 37 on the procedure to be followed and reg 38 with regard to the punishment to be imposed. [80] We refer to Mohamad Hassan bin Zakaria v Universiti Teknologi Malaysia [2017] 6 MLJ 586 and Majlis Perbandaran Pulau Pinang v Syarikat Berkerjasama-Sama Serbaguna Sungai Gelugor Dengan Tanggungan [1999] 3 MLJ 1 for the duty to give reasons when there is no express duty to do so. In Mohamad Hassan, this was said at pp 605 and 606: [46] Without diminishing its importance and contributions to many respects in the law on judicial review and the law of bias, the Federal Court’s decision in Majlis Perbandaran Pulau Pinang concerns the local authority’s imposition of conditions to its approval of the respondent’s application for planning permission. The facts are not really important for our present purpose, but the Federal Court’s views on the principles on the duty to give reasons are. Generally, the principles that can be S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 deduced from the Federal Court’s decision on this issue may be summed up as follows:

63. Very recently, the Court of Appeal in Suriwong International Sdn Bhd v Menteri Kewangan Malaysia & Ors [2025] 6 CLJ 373 on the same issue, held as follows: S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 [92] The applicable principles may be summarised as follows. There is no duty of general application that requires reasons to be given an administrative decision. However, such a duty may arise on a case to case basis and depending on the facts and circumstances surrounding the exercise of a power. Where a statute expressly provides that no reason need be furnished, then effect ought ordinarily be given to such provision and a duty would be precluded from arising. Conversely, the absence of a statutory provision creating an obligation to give reasons will not prevent such a duty from being implied by law. Reasons provided ex post facto are to be disregarded by the courts. [93] If the decision in question was a straightforward one, then no duty to give reasons would arise, but where it was — to utilise the phrase used by Abang Iskandar JCA in Pembinaan Batu Jaya v Pengarah Tanah dan Galian Selangor — mired in circumstances that would invite deeper rationalisation, then it would become incumbent upon the decision-maker to explain the decision. Similarly, if all known facts and circumstances appear to point overwhelmingly in favour of one outcome but a different decision was given, then the decision must be explained. [94] The cases discussed at paras [83] to [91] ante provide guidance on some of the factors that have been taken into account by the courts in determining whether a duty to give reasons has arisen. These include:

64. There is indisputably, no duty in the 1993 Regulations to give reasons for the punishment imposed. The Applicant’s case does not fall within any of the instances in Suriwong International where the duty can be said to arise. In the circumstances, I find that the PSC was not obliged to give its reasons for dismissing the Applicant. Failed to give an opportunity to mitigate before imposing punishment

65. The Applicant contends that even if she failed to exculpate herself, Regulation 38 provides for a range of punishment from a warning to dismissal. The Applicant ought to be accorded an opportunity to mitigate before punishment was imposed.

66. There is no provision in the 1993 Regulations on mitigation. Regulation 37 (4) allows the Disciplinary Authority to impose S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 punishment once the Applicant’s representation fails to exculpate herself. The relevant provision reads as follows: Procedure in disciplinary cases with a view to dismissal or reduction in rank 37(1)…

(4) If the officer does not make any representation within the period specified in paragraph (2)(b), or if the officer makes such a representation but the representation does not exculpate himself to the satisfaction of the appropriate Disciplinary Authority, the Disciplinary Authority shall then proceed to consider and decide on the dismissal or reduction in rank of the officer.

67. In the light of the clear wordings of the provision, the obligation to allow the Applicant to mitigate does not arise.

68. I shall now proceed to the grounds in JR 209. The Applicant was not in breach of any order/directive

69. The Applicant contends that when the charges were instituted, no directive was in force. There was a first directive for her to report for duty dated 14.10.2019 but was later abandoned. A second directive for her to report for duty was dated 19.7.2022. However, when this directive was issued, the disciplinary proceedings had already been instituted by the JPJ DB. Premised on these facts, the Applicant contends that she was not in breach of any order/directive to justify the institution of the disciplinary proceedings. S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 29

70. I am of the view that there is no requirement for a specific directive or order or to report for duty before disciplinary proceedings can be instituted. Upon the expiry of her no pay leave, she was obliged to report for duty. Her failure would render her liable to disciplinary action, as provided by Regulation 24 as follows: Disciplinary action for absence without leave

24. An officer’s absence from duty without leave or without prior permission or without reasonable cause shall render him liable to disciplinary action.

71. In any event, the letters directing her to report for duty were merely administrative letters. They were not issued as a pre-requisite for the institution of disciplinary proceedings.

72. Regulation 25 provides for the procedure to be taken where an officer is absent as follows: Procedure in cases of absence without leave

25. (1) Where an officer is absent from duty without leave or without prior permission or without reasonable cause, his Head of Department shall, as soon as possible, report that fact together with the dates and circumstances of such absence and any further information in respect of such absence to the appropriate Disciplinary Authority. (2) The appropriate Disciplinary Authority may, after considering the report of the Head of Department under subregulation (1), institute disciplinary action against the officer. S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 30

73. To reiterate, there is no requirement for a directive or order for the Applicant to be in breach of before disciplinary proceedings can be validly taken against her.

74. In any event, the Show Cause Letter of 15.7.2022 was in relation to firstly, her failure to report for duty on 2.10.2019 and secondly, for being absent thereafter for a period of 327 days from 2.10.2019 to 31.8.2020. It was not premised on the breach of any directive or order. Duplicity of charges

75. The Applicant contends that the two charges in the Show Cause Letter of 15.7.2022 overlapped and is therefore bad for duplicity.

76. In my view, there is no duplicity in the charges. On the contrary, they pertained to two separate disciplinary breaches. The first was for failure to report for duty on a specific date, namely 2.10.2019. The second was based on her failure to turn up for work for 327 days.

77. Whilst the second may arise from the first, but the thrust and focus of the second was the duration of her absence from work. I therefore find no question of duplicity of charges. S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 Delay in commencing disciplinary action

78. The Applicant contends that when the Show Cause Letter of 15.7.2022 was issued, the Applicant had already been absent for a period of 2 years 9 months since 2.10.2019.

79. Notwithstanding the apparent delay, the Applicant did not raise it when she made her representations on 21.8.2022. In the case of Nur Affaliza Mohd Arifin V. Suruhanjaya Perkhidmatan Pelajaran Malaysia & Ors [2022] MLJU 1560, the Court of Appeal held, [88] It is to be noted that there was no challenge by the appellant in her written representation that there was the delay in initiating the disciplinary action. The delay was therefore not a matter before the first respondent for their consideration. The point on delay was first raised at the JR Application. …

80. The Court of Appeal further added, [100] The 1993 Regulations make no specific time frame for disciplinary action to be taken. In Viskneswary, supra, the Federal Court held - “[34] The General Orders do not provide for the time when a disciplinary action is required to be taken against any officer for a disciplinary offence. Applying the principles earlier stated that where the procedure is provided by written laws then the courts should be wary of invoking common law, the delay, even if there was one, is not a ground for holding that there was a procedural unfairness.” …. S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 [104] Even if there was a delay on the part of the second respondent, we agree with the learned Judge that delay per se, as ruled by the Federal Court in Vicknewary, supra, is not the ground to hold that the disciplinary action taken by the first respondent was invalid. In Abd Razak Atan v Dato’ Hj Ahmad Ragib bin Hj Mohd Salleh (sued in his capacity as Assistant Chief Administrator to the Inspector General of Police (Disciplinary) & Ors [2010] 3 MLJ 753, Abdul Malik Ishak JAC held that delay per se can never be a ground for holding that the disciplinary proceedings conducted against the plaintiff should be held null and void and that the decision arrived thereat be set aside. We are bound to decide this issue according to the law. In the present appeal, delay was not part of the appellant’s complaint in her written representation. She did not complaint about it. We also cannot disagree with the learned Judge’s finding that the length of time was not inordinate.

81. Guided by the above decision, I find firstly, the delay was not inordinate, and secondly, even if there was delay, the delay alone cannot be a ground to impugn the decision of the JPJ DB. Refusal by DAB to consider appeal against decision of JPJ DB

82. The appeal by the Applicant to the DAB is governed by the Public Service Disciplinary Board Regulations 1993 (“PSDB Regulations”). Whilst the Applicant’s appeal was still pending, the Applicant was dismissed by the PSC in the 2nd disciplinary proceedings (subject matter of JR 19). In view of her dismissal, the DAB decided not to consider her appeal.

83. The Applicant contends that the DAB had no power to refuse to hear and determine the appeal. S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 33

84. The Applicant is misconceived in her contention. Regulation 13 of the PSDB Regulations provide as follows: Functions of the Disciplinary Appeal Board

13. The functions of the Disciplinary Appeal Board shall be to receive, consider and decide on any appeal made in accordance with the provisions of these Regulations with respect to any decision of the Disciplinary Board relating to the conduct and discipline of an officer in any of the services referred to in regulation 3.

85. Regulation 3 makes reference to members of the public services. As a result of her dismissal, she had ceased to be a member of the public service within the meaning of Article 132(1) of the Federal Constitution.

86. The Applicant was therefore no longer considered an officer within the meaning of Regulations 3 and 13 of the PSDB Regulations. As the Applicant had been dismissed, the DAB is statutorily precluded from further consideration of her appeal against the JPJ DB decision.

87. The DAB was therefore correct in the position taken that it did not have the jurisdiction to hear and determine the Applicant’s appeal at the material time. S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 Failed to comply with the procedural requirements in the PSDB Regulations

88. The Applicant contends that the provisions in the PSDB Regulations were not complied with dealing with her appeal. There was delay in convening a meeting of the DAB, and in informing her of the outcome of the appeal.

89. Since the Applicant had been dismissed and as a result, the DAB has no jurisdiction to determine the Applicant’s appeal. The Applicant’s contention is now moot.

90. As for the remaining grounds advanced in JR 209, they are common grounds with JR 19. Having dealt with them in JR 19, it is not necessary to repeat them for JR 209. Conclusion

91. Premised on the foregoing reasons, I find that the Applicant has failed to establish that judicial review lies against the decisions of the Lembaga Tatatertib Kumpulan Pengurusan (No. 2) and the Disciplinary Appeal Board in JR 209. The same goes for the decision of the Public Services Commission in JR 19.

92. In the circumstances, the judicial review applications in JR 19 and JR 209 are dismissed. I also order that the Respondents be paid S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 costs of RM 2,000.00 for each of the cases. Dated: 22nd April 2026 -sgd-Alice Loke Yee Ching Judge High Court Kuala Lumpur Counsel for Applicant: En. Edmund Bon Tai Soon (En. Micheal Cheah Ern Tien and Cik Lee Yee Wei together with him) Tetuan Amerbon Advocates Counsel for Respondents: Pn. Safiyyah binti Omar Federal Counsel Jabatan Peguam Negara S/N nVtF9fIIf0Sli4vIUw47ag **Note : Serial number will be used to verify the originality of this document via eFILING portal