SIVAKUMAR A/L NARAYANA SAMY v 1. ) Suruhanjaya Perkhidmatan Awam Malaysia (AB-25-1-11/2020)

PENGERUSI LEMBAGA TATATERTIB

KETUA UNIT, KAWALAN AMALAN PERUBATAN SWASTA

3.

KERAJAAN PERSEKUTUAN MALAYSIA ...RESPONDENTS GROUNDS OF JUDGMENT [1] This is an appeal against this Court’s decision on 7.4.2022 where the Court had dismissed the Applicant’s application for judicial review (Enclosure 1) under O.53 Rules of Court 2012 (ROC) in respect of his dismissal from public service on 6.7.2020. The Applicant was an Assistant Medical Officer serving at Hospital Taiping, Perak Darul Ridzwan prior to his dismissal. The Applicant has filed the Application for Judicial Review (the Application) upon being served with a letter of termination from service with the Government of Malaysia at Kementerian Kesihatan (Hospital Taiping) with effect from date of letter dated 28.7.2020 and which he received on 1.9.2020. [2] The Applicant filed the leave application for judicial review on 26.11.2020 and duly served the cause papers on the Attorney General’s Chambers (AGC). The AGC received the cause papers on 11.1.2.2020 and at first indicated it was objecting to the leave application via letter dated 16.12.2020. Nevertheless, via letter dated 21.1.2021, the AGC withdrew its preliminary objection. The previous Judicial Commissioner on S/N 4mxZooVjXEmjRq54w8a2MA

9.3.2021 allowed the leave application for judicial review. The substantive application in Enclosure 15 was heard on 22.2.2022. [3] The Applicant sought the following reliefs:

3.1 an order of certiorari to quash the 1st Respondent’s decision to dismiss him dated 28.7.2020 which was received only on 1.9.2020 wherein the former had dismissed the Applicant’s claim and appeal and decided that the punishment of dismissal from employment effective 6.7.2020 for misconduct was upheld;

3.2 an order of mandamus against the 1st Respondent directing the Respondents to reinstate the Applicant to the grade and salary which he enjoyed before his dismissal from service without loss of seniority and/or privileges;

3.3 an order that the Respondents’ decision via letters dated 28.7.2020 and 8.10.2020 that had failed/ignored the Applicant’s appeal which was based on strong reasons and facts adduced wherein the impugned decisions were contrary to Article 135(2) of the Federal Constitution had failed to afford him a reasonable opportunity to be heard, thereby making the decision wrong in law and a nullity;

3.4 an order that the charges by the Respondents which arose from an allegation that the Applicant impersonated a registered Medical Officer as if he was carrying on as a locum doctor at Poliklinik Dr Ng on 13.12.2011 but which investigation was only conducted by the 2nd and 3rd Respondents after approximately 9 years, therefore rendering disciplinary action against him null and void;

3.5 an order of mandamus directing the 1st Respondent to set aside its decision and to reinstate the Applicant to his original position until his retirement and that the Applicant is entitled to public service pension as provided for Malaysian civil servants; S/N 4mxZooVjXEmjRq54w8a2MA

3.6 loss of earnings and/or salary arrears on the Applicant’s wrongful dismissal and/or termination by the Respondents (this relief was repeated in paragarphs 6 and 7 of Enclosure 15);

3.7 an order that the Respondents to recompense the Applicant for damages (to be assessed) and exemplary damages for the wrongful dismissal and/or termination by the Respondents;

3.8 loss of bonus payments, service allowances and loss of promotion;

3.9 that all proceedings in respect of the decision be stayed until the disposal of the judicial review substantive application;

3.10 costs; and

3.11 other reliefs.

The Cause Papers in this application were as follows:

4.1 Leave Application for Judicial Review dated 26.11.2020 (Enclosure 1);

4.2 Statement under Order 53 r.3(2) dated 26.11.2020 (Enclosure 2);

4.3 Affidavit in Support affirmed by the Applicant dated 25.11.2022 (Enclosure 3);

4.4 Supplementary Affidavit affirmed by the Applicant dated 15.1.2021 (Enclosure 9);

4.5 Sealed Order dated 9.3.2021 (Enclosure 14);

4.6 Notice of Hearing for Judicial Review Application dated 19.3.2021 (Enclosure 15);

4.7 Affidavit in Support affirmed by the Applicant dated 19.3.2021 (Enclosure 16);

4.8 2nd Respondent’s Affidavit in Opposition affirmed by Dr. Norhasmaliza Binti Mohamad Noor dated 25.4.2021 (Enclosure 18); S/N 4mxZooVjXEmjRq54w8a2MA

4.9 1st Respondent’s Affidavit in Opposition affirmed by Tan Sri Zainal Rahim Bin Seman dated 26.4.2021 (Enclosure 19);

4.10 Affidavit in Reply affirmed by the Applicant dated 29.7.2021 in response to the 1st Respondent’s Affidavit in Opposition (Enclosure 20); and 4.11 Affidavit in Reply affirmed by the Applicant dated 29.7.2021 in response to the 2nd Respondent’s Affidavit in Opposition (Enclosure 21). BACKGROUND FACTS [6] The facts are gathered from the Affidavit in Support of the Application and Supplementary Affidavit of the Applicant as well as the Affidavit In Opposition of the 1st and 2nd Respondents to complete the picture. [7] In 2011, the Applicant alleged that he worked as a locum Medical Assistant at Poliklinik Dr Ng in Kulim, Kedah under the name of Michael Sivakumar with the proprietor of the clinic, one Dr Ng. Purportedly, the staff and patients at the clinic called him “Dr Michael”. His nickname from birth was Michael. The Applicant would be treating patients and carrying out procedures under the supervision of Dr Ng; the latter would be supervising him from home most of the time. He wrote the name “Dr Michael” and his telephone number in the clinic’s note book or diary to prove that he was not impersonating Dr Mohan Raj A/L Sundram, which was the allegation against him. He said there were many doctors doing locum at the said clinic and may have caused some confusion thereafter. [8] The narrative of the case was also supplemented by the facts which were systematically presented in the Affidavit in Opposition deposed by Dr Norhasmaliza

Binti Mohamad Noor (“Dr Norhasmaliza”) on behalf of the 2nd Respondent in Enclosure She is the Ketua Penolong Pengarah Kanan, Unit Kawalan Amalan Perubatan Swasta (UKAPS) Negeri Kedah. She conducted an investigation against the Applicant in 2011. The following facts were gathered from Enclosure 18. [9] Via letter dated 24.2.2011 from the Kedah State Exco YB Lim Soo Nee addressed to the Director of the Kedah State Medical Department (Exhibit NMN-6), a S/N 4mxZooVjXEmjRq54w8a2MA complaint was made against Poliklinik Dr Ng in Kulim, Kedah that was suspected of selling medical leave certificates (MC). The said MC, Exhibit NMN-1, was referred to in Enclosure 18. The MC bearing number 24874 (“the said MC”) was issued to one Lee Yen Yee and dated 9.2.2011. The complainant was the parent (“the said parent”) of Lee Yen Yee who had sought treatment at Poliklinik Dr Ng on 9.2.2011 but forgot to ask for the MC that day. A few days later, the said parent went back to the clinic but was asked to pay RM24.00 for the MC to be issued. The said parent was dissatisfied as it appeared as if the clinic was selling the said MC (Exhibit NMN-1). The document and payment receipt were forwarded to the Kedah State Medical Department for investigation and further action against the said clinic. [10] Thereafter, UKAPS and the Kedah State Medical Department conducted a physical investigation at the said clinic in 21.3.2011, and discovered that a doctor doing locum there by the name of “Dr Michael” was working at Jabatan Ortopedik, Hospital Taiping and proprietor of the clinic, Dr Ng Boon Tong confirmed that “Dr Michael” was the person who issued the said MC on 12.2.2011 backdated to 9.2.2011. Dr Ng Boon Tong narrated to UKAPS what transpired on that day when the said MC was issued. He said “Dr Michael” had been working as a locum doctor at the clinic for the past 2 years. [11] As “Dr Michael” was not at the said clinic during the investigation, UKAPS then called and asked “Dr Michael” to send his Annual Practicing Certificate (APC) via facsimile. The APC No. 2723/2009 was faxed on 21.3.2011 by the Applicant and received via facsimile at the said clinic and it bore the name “Dr Mohan Raj A/L Sundram” (Dr. Mohan). Subsequent investigation showed that Dr Mohan was an orthopaedic specialist who worked at Jabatan Ortopedik, Hospital Taiping. UKAPS had asked “Dr. Michael” to give a statement in investigation which the Applicant gave on 3.5.2011 to Dr. Norhasmaliza where he admitted he had faxed Dr Mohan’s APC because he wanted to continue working at the clinic (Exhibit NMN-7). Dr Mohan also gave his statement on the same day to Dr Norhasmaliza and denied working at the said clinic (Exhibit NMN-8). The APC was kept in his room in a drawer and he was not sure how it was faxed to Dr. Ng’s clinic on 21.3.2011. He stated that his room was accessible by others as the duplicate key was kept in the department. He also stated that the Applicant had access to the whole department as he was under the S/N 4mxZooVjXEmjRq54w8a2MA supervision of the Head of the Department. On 22.12.2011 Dr Mohan vide letter confirmed that he was not directly or indirectly connected to the incident (Exhibit NMN- 3). Dr Ng Boon Tong later confirmed via letter dated 2.1.2012 that Dr Mohan worked at the said clinic from 6.00 pm on 12.2.2011 until 6.00 am 13.2.2011 and gave Dr Mohan’s APC No. as 2723/2009 (exhibit NMN-2). [12] The Kedah State Medical Department then sent a letter dated 4.7.2011 to the Director of Perak State Medical Department informing the latter about the investigation that had been carried out pertaining to the same (Exhibit NMN-4). The letter alleged that the locum doctor who was on duty at that time when the MC was issued was the Applicant, based on its investigations. At the material time, the Applicant was an Assistant Medical Officer (Grade U32) at Hospital Taiping. The Applicant was said to have cheated by impersonating as a doctor (menipu secara menyamar). He was also found to have lied to the Investigation Officer by impersonating Dr Mohan Raj A/L Sundram who was his superior in Hospital Taiping. He was found to have taken a document, the APC belonging to Dr Mohan without his knowledge and faxed it over to the said clinic when the UKAPS investigator was there. [13] Vide letter dated 19.9.2011, the Lembaga Pembantu Perubatan issued a show cause letter to the Applicant in respect of 3 allegations (Exhibit NMN-5). The allegations were that he had issued the backdated MC, carried out work outside of public service without a written approval of the Head of Department and breach of terms and conditions of section 10(3) of the Akta Pembantu Perubatan 1977 and Peraturan-Peraturan Pembantu Perubatan (Pendaftaran) 1979 for working on his own at a private clinic without direct supervision of a Medical Practitioner. Nevertheless, he did not respond to that letter. [14] A disciplinary action letter dated 16.1.2020 for the purpose of dismissal or demotion containing facts was issued to the Applicant by the Setiausaha Suruhanjaya Perkhidmatan Awam Malaysia (SPA) (Exhibit TZR-1). This was a point of contention by the deponent of the Affidavit filed on behalf of the SPA, Tan Sri Zainal Rahim Bin Seman, Chairman of the SPA Disciplinary Board, as the 1st Respondent named by the Applicant in this suit was claimed to be the wrong party. It said that the right party should be the SPA which is the disciplinary authority to dismiss S/N 4mxZooVjXEmjRq54w8a2MA the Applicant under Article 144(1) of the Federal Constitution, Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993 [P.U.(A) 395/1993] (“PPPA”) and the Peraturan-Peraturan Lembaga Tatatertib Perkhidmatan Awam 1993 [P.U.(A) 396/1993]. Nevertheless, I will elaborate on this matter later. [15] The Applicant was charged under Reg. 4(2)(d), (f) and (g) of the PPPA. The Applicant was asked to provide his representation in writing within 21 days from receipt of the letter to answer the allegation against him as provided for under Reg. 37(2)(b), failing which it would be deemed that he did not wish to defend himself and the SPA would make a decision based on the evidence available. The charge stated: “Pertuduhan ‘Bahawa tuan, Sivakumar all Narayana Samy (K.P.: 690814-08-5615), Penolong Pegawai Perubatan Gred U41, semasa bertugas sebagai Penolong Pegawai Perubatan Gred U32 di Hospital Taiping, Perak telah melakukan kesalahan menipu secara menyamar sebagai Pegawai Perubatan Berdaftar dengan menggunakan pengenalan diri Dr. Mohan Raj a/l Sundram (K.P.: XXXXXXXXXXXX), No. APC 2723/2009 sewaktu menjalankan pekerjaan luar (lokum) di Poliklinik Dr. Ng yang beralamat di No. 30-A, Jalan Raya, 09000 Kulim, Kedah di antara jam 6.00 petang pada 12.2.2011 hingga jam 6.00 pagi pada 13.12.2011. Dr. Mohan Raj a/l Sundram merupakan Pegawai Perubatan Gred UD54 yang bertugas di Jabatan Ortopedik, Hospital Taiping, Perak pada ketika itu. Perbuatan tuan ini boleh diertikan sebagai berkelakuan dengan sedemikian cara sehingga memburukkan nama atau mencemarkan nama perkhidmatan awam, tidak jujur atau tidak amanah dan tidak bertanggungjawab iaitu bertentangan dengan Peraturan 4(2)(d), 4(2)(f) dan 4(2)(g), Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993 seperti berikut: Peraturan 4(2) Seseorang pegawai tidak boleh -

berkelakuan dengan sedemikian cara sehingga memburukkan nama atau mencemarkan nama perkhidmatan awam;

tidak jujur atau tidak amanah;

tidak bertanggungjawab; Jika tuan didapati bersalah atas pertuduhan di atas, tuan boleh dihukum mengikut Peraturan 38, Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993.’ Note: Dr Mohan’s identity card number is purposely not disclosed in this judgment for security and privacy reasons. S/N 4mxZooVjXEmjRq54w8a2MA [16] The Applicant responded to the charge via letter dated 9.3.2020 denying that he had ever impersonated Dr Mohan whilst working as a locum at the clinic (Exhibit TZR-2). He claimed that the investigation panel in 2011 only conducted one investigation and he was not given the chance to explain the real situation. He asserted further that he was having serious family problems at that time and was in a state of panic and confusion, he did not remember what he had told the panel then and now. He was not informed of the outcome of that investigation and that the chairman of the investigation panel allegedly told him that the matter had been settled with a verbal warning. Thereafter, he stopped working as a locum at the said clinic. The Unit Tatatertib of the Hospital Taiping did not give him any feedback despite requesting for the same on a few occasions and there was no record made in his Service Book. He assumed that the matter had been closed. The Applicant also claimed to have some evidence where the disciplinary board could refer to any of the staff at the said clinic that he did not impersonate Dr Mohan while he worked there 9 years ago, that Dr Ng was his witness, all correspondences and MCs were signed by Dr Ng or “Dr Tee” the clinic’s proprietors and that he had written down his name as “Dr Michael” with his telephone number to prove that he did not use the name of Dr Mohan. [17] The Applicant claimed in the letter that he practiced the principle of “Rule of Law” and his annual appraisal marks exceeded 90 every year to prove that he was committed to his work and was a responsible person. He gave some family background and stated that the job was important to him and his family. Lastly, in the letter the Applicant swore that he did not impersonate a Medical Officer and hoped that his explanation would be given due consideration by the disciplinary board. [18] Having considered the Applicant’s representation in the letter dated 9.3.2020, the SPA found him guilty of the charge and informed him of its decision via letter dated 28.7.2020. The Applicant was dismissed with effect on 6.7.2020. He appealed to the SPA via letter dated 9.9.2020 as the mistake was unintentional. The SPA responded via letter dated 8.10.2020 that it could not consider the appeal because it was functus officio and that the Applicant could file for judicial review if he was dissatisfied with its decision. The SPA reiterated that it had only received one (1) representation from the Applicant in his letter dated 9.3.2020. In respect of his appeal via letter dated 9.9.2020, S/N 4mxZooVjXEmjRq54w8a2MA the SPA responded that its decision was final and there was no right of appeal provided by law. GROUNDS FOR JUDICIAL REVIEW [19] The Applicant’s complaints in the application against the Respondents could be categorised into the following grounds: i. failure to give the Applicant right to be heard orally; ii. failure to supply a copy of the findings of the 3rd Respondent and the complaint against the Applicant by the 2nd Respondent; iii. unreasonableness of the 1st Respondent in rejecting the Applicant’s explanation and appeal; iv. termination was wrongful and contravened the Government Proceedings Act as the 3rd and 4th Respondent did not reply to the Applicant’s affidavits; and v. condonation due to delay in the disciplinary action against the Applicant. FINDINGS OF THE COURT [20] The Applicant claimed that the 1st Respondent had made a decision which was unreasonable and tainted with mala fide wherein the decision to terminate his service was made almost 11 years after the investigation that was commenced against him for an alleged misconduct which he was never charged back then. Therefore, the termination of service appeared to be an afterthought without verifying the facts and issues which in any event the Applicant was not given an opportunity to defend the charges. The Applicant contended that the 1st Respondent’s decision to terminate his service was based on bare assertions which was groundless. Further, he was denied a reasonable opportunity to be heard to enable the Applicant to provide the grounds of what transpired in 2011. S/N 4mxZooVjXEmjRq54w8a2MA

Whether the Applicant had brought the right party to Court [21] As stated earlier, the SPA objected in the Affidavit in Opposition affirmed by Tan Sri Zainal Rahim Bin Seman (Enclosure 19) that its Pengerusi Lembaga Tatatertib was named as the 1st Respondent in this action whereas the right party should be the SPA. The learned Senior Federal Counsel raised this objection during the hearing on 22.2.2022. Paragraphs 1-5 of Enclosure 19 stated the Applicant’s misconceived notion and explained the difference in the two entities. The Applicant in his Affidavit in Reply (Enclosure 20) denied the explanation by simply stating in paragraph 3 “… perenggan 2, 3, 5 … 19, 20, 21 dan 22 adalah disangkal sekeras-kerasnya.”. It is noted that the Applicant merely lumped up all paragraphs in Enclosure 19 which he disputed without explaining why he thought that SPA was wrong in the explanation in paragraphs 1-5 of Enclosure 19. [22] The Court will deal with this issue of non-joinder/misjoinder first before considering the grounds raised by the Applicant in this judicial review application. In the case of Abd Mutalib @ Puteh Mohd Ali v Majlis Bandaraya Petaling Jaya [2016] 1 LNS 1085 (HC), the High Court dismissed a judicial review application against the applicant’s dismissal from the Municipal Council of Petaling Jaya as the Disciplinary Board of the local authority had not been cited as a party to the proceedings. The learned High Court Judge stated: “[19] I find the decision maker in respect to the impugned decision is a Disciplinary Board of Majlis Bandaraya Petaling Jaya. The decision to terminate the Appellant was decided by the Disciplinary Board of the Majlis Bandaraya Petaling Jaya and it was never decided by the Majlis Bandaraya Petaling Jaya. Furthermore, the decision of the Disciplinary Board is bound on the Council. [20] The Council cannot respond to the allegations of the Applicant in the present Judicial Review because the allegations of the Applicant has nothing to do with the proceeding that took place before the Disciplinary Board and not before the Council. [21] I find the Disciplinary Board has to be brought before the Court to answer this Judicial Review because Judicial Review is something about the process reviewing the decision of the Tribunal and the proper Tribunal is the Disciplinary Board. The Disciplinary Board is the party who heard the complaint and made a decision, and its decision is final. S/N 4mxZooVjXEmjRq54w8a2MA [22] Likewise, I find the Council never made any evaluation and never made a decision in dismissing the Applicant. The Council will rely on the decision of the Disciplinary Board, and will just implement the decision of the Disciplinary Board. [23] I agree with the submission of the Respondent solicitor that in the Judicial Review proceeding, we cannot review the decision sought to be impugned. The challenge is to the decision making process and in this case the body making the decision is not before the Court. [24] I hold that any review of the decision making process in arriving at a decision said to be unreasonable, irrational, whether made mala fide are issues where the Disciplinary Board must be named as a party in this proceeding. As the proper party whose decision making is sought to be challenged is not before the Court, the Court cannot properly adjudicate this judicial review.”. [Emphasis added] [23] In the case of Samsiah Bt Leman v Ketua Polis Negara & Ors [2016] 7 MLJ 149, the High Court stated: “[6] They further place reliance on Section 3 of the Public Officers (Conduct And Discipline) Regulations 1993 which provides as follows: "Disciplinary Authority" means the appropriate Service Commission whose jurisdiction extends to the service of which the said officer is a member in accordance with the provisions of Part X of the Federal Constitution, and includes an officer or a board of officers in the public service by whom the Commission's function relating to the disciplinary control is exercisable in pursuance of Clause (5A), (5B), (6) or (6A) of Article 144 of the Federal Constitution." [7] Therefore, the Respondents contend that the decision maker with respect to the impugned decision is the Disciplinary Board. [8] I agree with the submission advanced by the Learned FC that the capacity of the First Respondent as Inspector General of Police (IGP) is separate and distinct from the post he holds as Chairman of the Disciplinary Board. The IGP derives his powers from the Police Act 1967. By way of contrast, in exercising his power as Chairman of the Disciplinary Board, he is regulated by the Public Officers (Conduct and Discipline) Regulations 1993. The capacity in which he had acted in issuing the show cause letter to the Applicant dated 22/4/2013 (Exhibit "SL3"), clearly reflected that he was performing the function of Chairman of the Disciplinary Board. Further, the decision to dismiss that was communicated to the Applicant by way of letter dated 26/5/2014 (Exhibit "SL5"), clearly contained references which indicated that the decision was that of the Disciplinary Board "Lembaga Tatatertib". For example, "Lembaga Tatatertib setelah menimbangkan representasi anda dengan teliti dan saksama memutuskan..." and S/N 4mxZooVjXEmjRq54w8a2MA "Lembaga Tatatertib memutuskan hukuman tatatertib terhadap anda seperti di atas berkuatkuasa mulai 22/5/2014 iaitu tarikh hukuman dijatuhkan". It is thus patently clear on the face of it that the decision maker was in fact the Disciplinary Board. This being the case, it cannot be argued that the Applicant was misled or confused in any way as to who was the decision maker who made the decision against her. [10] The power of the Police Force Commission under the said Article 140 has been delegated to the Disciplinary Board by virtue of Article 140(6)(b) of the Federal Constitution vide P.U.(B) 441/2000. The proper party therefore is the Disciplinary Board. [11] In the premises I find that the First to the Fourth Respondents were not the decision making bodies that decided against the Applicant and should not have been named in the application. I therefore uphold the AG's chambers preliminary objection.”. [Emphasis added] [24] The learned Senior Federal Counsel submitted that it was also wrong to name the 2nd and 3rd Respondents as the responsible disciplinary authority that had taken action in dismissing him. It was submitted further that the Applicant was wrong to cite the 1st Respondent in this suit as an appeal board which heard the appeal from a decision made by the the 2nd and 3rd Respondents as they were not responsible in making the decision to dismiss him. Considering the established case laws and the evidence given by the Chairman of the SPA Disciplinary Board, the Court agrees with the submission of the Respondents that the person should not have been named as a party to this action but it is the SPA itself which was vested the responsibility as the decision-making body that dismissed the Applicant. It is to be noted that the Applicant did not sufficiently reply to this issue when the Chairman of the SPA Disciplinary Board in Enclosure 19 in paragraphs 1-5 explained the position of the SPA and had objected to the wrong party being named. On that score alone based on the decision in Abd Mutalib @ Puteh Mohd Ali and Shamsiah Binti Leman I am of the opinion that the application for judicial review could have been dismissed by this Court where the correct body is not before the Court. [25] Nevertheless, the Court did not dismiss the application based on the preliminary objection raised by the learned Senior Federal Counsel but has proceeded to consider the grounds complained by the Applicant which the Court has categorised above (the pleadings of the Applicant were not very coherent in some paragraphs of his Affidavits). The SPA despite its objection earlier on the wrong party being named, had S/N 4mxZooVjXEmjRq54w8a2MA proceeded to reply to the allegations of the Applicant and provided evidence in Enclosure 19 pertaining to the action it had taken after receiving the report on 9.5.2019 regarding the Applicant’s alleged misconduct. For this purpose, the Court will refer to the SPA as the “1st Respondent”. [26] The learned Senior Federal Counsel submitted that judicial review is not to review the decision but the decision making process and the Court in a judicial review application is not exercising appellate jurisdiction but supervisory jurisdiction: T. Ganeswaran v Suruhanjaya Polis DiRaja Malaysia & 1 lagi [2005] 3 CLJ 302; Chief Constable of North Wales Police v Evans [1982] 3 All ER 141; Michael Lee Fook Wah v Menetri Sumber Tenaga Malaysia & Anor [1998] 1 MLJ 305; Harbhajan Singh v Suruhanjaya Pasukan Polis Malaysia [1999] 5 MLJ 222. [27] The learned High Court Judge in the recently decided case of Noraini Binti Hj. Rasi v Setiausaha Suruhanjaya Perkhidmatan Awam Malaysia (WA-25-138- 04/2020) stated: “6. It is trite law that the court not only can review the decision-making process but also the substance of the decision.

In the recent Federal Court case, Akira Sales & Service (M) Sdn Bhd v. Nadiah Zee bt. Abdullah and another appeal [2018] 3 MLRA 589; [2018] 2 CLJ 513; [2018] 2 MELR 337; [2018] 2 MLJ 537, the liberal approach on judicial review in R. Rama Chandran v. The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145; [1997] 1 CLJ 147; [1996] 1 MLRA 725; [1997] 1 AMR 433 has been re-emphasized 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 e.g. 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. S/N 4mxZooVjXEmjRq54w8a2MA 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 referred to as ‘Wednesday 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 decisions. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that the 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.” …

The function of the court in judicial review is to review the decision of the disciplinary authorities and not to rehear the case by review, re-assess, re-appreciate, reappraise evidence, or draw its own inference as to facts from the evidence. Weighing and assessing the evidence is the function of the disciplinary authorities. The court cannot interfere merely because it may come to S/N 4mxZooVjXEmjRq54w8a2MA different conclusions on facts on the same basis of the same evidence (See Kerajaan Malaysia v. Tay Chai Huat [2012] 1 MLRA 661; [2012] 3 CLJ 577; [2012] 1 MELR 501; [2012] 3 MLJ 149). [Emphasis added] [28] Therefore, the Court is mindful that in a judicial review application, in its supervisory jurisdiction the Court is reviewing the decision-making process. It cannot interfere merely because it may come to a different conclusion on the same facts. But at the same time in reviewing the decision-making process, a decision is also open to challenge on the 3 grounds of review i.e. on grounds of ‘illegality’, ‘irrationality’, ‘procedural impropriety’, and a possible fourth ground of ‘proportionality’. Therefore, in practice, this permits the courts to scrutinise such decisions not only for process, but also for substance. In the present case, the Applicant’ complaints, in my considered view, actually fall under the ground of procedural impropriety.

(ii) Failure to give the Applicant right to be heard orally [29] The Applicant contended that he was not given an oral hearing to explain the situation and to call his witnesses. He claimed that the investigation panel in 2011 only conducted one investigation and he was not informed of the outcome of that investigation; that the chairman of the investigation panel allegedly told him that the matter had been settled with a verbal warning. In his representation letter, the Applicant ‘hoped’ that his explanation would be given due consideration by the disciplinary board. [30] I have scrutinised the letter dated 9.3.2020 and I agree with the Respondents’ contention that at the point when the representation was made, the Applicant never requested for an oral hearing or to call his witnesses to explain the matter (refer to Exhibit TZR-2 in the 1st Respondent’s Affidavit in Opposition). He implied that the 1st Respondent could conduct an investigation at the said clinic as the nurses could corroborate his explanation that he never impersonated Dr Mohan while he worked as a locum there. The 1st Respondent found that the Applicant’s explanation in the said letter did not exculpate him. Having considered the Applicant’s representation in the letter dated 9.3.2020, the 1st Respondent found him guilty of the charge and he was S/N 4mxZooVjXEmjRq54w8a2MA punished with dismissal. He appealed via letter dated 9.9.2020 as the mistake was unintentional. The 1st Respondent responded via letter dated 8.10.2020 that it could not consider the appeal because it was functus officio and that its decision was final, and there was no right of appeal provided by law. [31] The learned High Court Judge in the Noraini Binti Hj Rasi’s Case (supra) referred to the case of Khalid Mat v. Suruhanjaya Pasukan Polis DiRaja Malaysia & Ors [2011] 1 MLRH 423; [2011] 7 CLJ 613 at 625, where Aziah Ali J (as she then was) held: “Denial of Oral Hearing [18] The words ‘being heard’ does not connote oral hearing and that the right to be heard does not entail an obligation to hold an inquiry. In Ceylon University v. Fernando [1960] 1 WLR 223 Lord Jenkins, giving the advice of the Privy Council, quoted with approval at p. 232 the following words of Harman J, as he then was, in Bryne v. Kinematograth Renders Society Ltd [1958] 2 All ER 579: What then are the requirements of natural justice in a case of this kind? First, I think that the accused person should know the nature of the accusation made; secondly, that he should be given an opportunity to state his case; and, thirdly, of course, that the tribunal should act in good faith. I do not myself think that there really is anything more. [19] In Raja Abdul Malek Muzaffar Shah Raja Shahruzzaman v. Setiausaha Suruhanjaya Pasukan Polis & Ors (supra) the Court of Appeal ruled that the “right to be heard does not in all cases include the duty to afford an oral hearing”. What is important is that the officer concerned should have a full opportunity of stating his case before he is dismissed and the officer avails himself of the opportunity (Najar Singh v. Government of Malaysia & Anor [1976] 1 LNS 81). In the present case the Applicant has availed himself of the opportunity to be heard which is reflected in his lengthy representations. In Ghazi Mohd Sawi v. Mohd Haniff Omar, Ketua Polis Negara, Malaysia & Anor [1994] 2 CLJ 333 the Supreme Court said: ...there should not be anymore lingering doubt as to what the phrase “right to be heard” or “opportunity of being heard” mean at common law or in the statute, and it must be accepted that the issue has been settled, as well as can be on the authorities cited above. Therefore, this point is cadit quaestio. [20] The 1993 Regulations are in accord with the principles of natural justice and procedural fairness (Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v. Utra Badi K Perumal [2001] 2 CLJ 525). In the case of S/N 4mxZooVjXEmjRq54w8a2MA Abdul Aziz Mohd Alias v. Timbalan Ketua Polis Negara, Malaysia & Anor [2010] 3 CLJ 643 Zulkefli Makinuddin FCJ said:- we are of the view that the General Orders, in detailing the procedure therein, have sufficiently complied with article 135(2) of the Federal Constitution and, in the process, are in accord with the concept of natural justice and procedural fairness. Therefore, in the context of the 1993 Regulations the absence of an oral hearing does not mean a denial of natural justice.”. [Emphasis added] [32] In Ghazi bin Mohd Sawi v. Mohd Haniff bin Omar, Ketua Polis Negara, Malaysia & Anor [1994] 2 CLJ 333; [1994] 1 MLRA 93; [1994] 2 AMR 1257; [1994] 2 MLJ 114, the Supreme Court held that: “The right to be heard does not mean the right to be heard orally. What it means is that the officer concerned should be given a full opportunity of stating his case.”. [33] The learned Senior Federal Counsel referred to the case of Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang v. Utra Badi K Perumal [2001] 1 MLRA 145; [2001] 2 MU 417; [2001] 2 CU 525 at 527, where the Federal Court held: “[5] The right to be heard as given by Art. 135(2) of the Federal Constitution does not necessitate that the person concerned be given an oral hearing. Therefore, in the absence of such a hearing, one cannot conclude that it amounts to denial of natural justice. In matters involving GO 26, the requirement of fairness is satisfied by an opportunity to make written representations to the deciding body”. [34] Then in the case of Public Services Commission Malaysia & Anor v Vickneswary a/p RM Santhivelu (substituting M Senthivelu a/l R Marimuthu, deceased) [2008] 6 MLJ 1, where one of the issues raised to the Federal Court was whether the respondent should be given the right to be heard orally although there was no request as such. The Federal Court held the following: “[24] From this, it is clear that it is never the intention of the legislators to give an officer under disciplinary action the right to give oral evidence. In any case as far as the deceased was concerned, he was given an opportunity and he did give a very lengthy letter explaining in detail why he could not have committed the acts of which he was charged under. He said in his letter that he was prepared to appear before the disciplinary authority to answer questions that S/N 4mxZooVjXEmjRq54w8a2MA the disciplinary authority may wish to pose to him. Obviously the disciplinary authority decided from the evidence available to it that was not necessary to hear the deceased in person. [25] From the provisions of the general orders it is clear that it is never the intention of the legislators that the courts should step into the shoes of the disciplinary authority in deciding whether it was fair to the respondent to have granted him a right to make oral representations or whether he should be given such right although he did not ask for it. [26] This clearly disposes of questions (i) and (iv). I would answer both questions in the negative.”. [35] Later, the Federal Court in Kerajaan Malaysia & Ors v. Tay Chai Huat [2012] 1 MLRA 661; [2012] 3 CLJ 577, [2012] 3 MLJ 149 went on to clarify the position of the law further when it held: “[27] I dare to say that the law is settled in cases of this genre. This can be gleaned from several decisions which were decided to Utra Badi and Vickneswary, see Hajjah Halimatussadiah bte Haji Kamaruddin v. Public Services Commission, Malaysia & Anor [1994] 3 MLJ 61; Ghazi bin Mohd Sawi v. Mohd Haniff b. Omar; Ketua Polis Negara, Malaysia & Anor [1994] 2 MLJ 114; Zainal Hashim v. Government of Malaysia [1994] 1 MLJ 138. [28] From the authorities referred to above, I am of the view that the law is settled. Thus, an oral hearing may be given in instances where the disciplinary authority considers that the case against the officer requires further clarification and consequently appoint a Committee of Inquiry pursuant to general order (Chapter D). If the disciplinary authority considers that no further clarification is required, I do not think that the officer concerned can insist or demand that a Committee of Inquiry be appointed.” [36] Premised on the above authorities, it is trite law that the principle of the right to be heard orally at common law is subject to legislative intendment to the contrary; it may be excluded in regulations which have legislative effect such as the PPPA that was the provision under which disciplinary action was taken in the present case (refer to Ghazi bin Mohd Sawi (supra)). Moreover, the 1st Respondent stated in Enclosure 19 paragraphs 7(i) and (j) and 14(a) that the Applicant had been given the right to make a written representation as provided for under the PPPA. Additionally, upon careful perusaI of the representation letter dated 9.3.2020 I find that the Applicant in the said letter did not request for an oral hearing to be conducted. He only ‘swore’ that he did not impersonate a Medical Officer and ‘hoped’ that his explanation would be S/N 4mxZooVjXEmjRq54w8a2MA given due consideration by the disciplinary board. Therefore, based on the facts aforesaid, the Court opines that the Applicant has not been deprived of the right to be heard with respect to the charge when an oral hearing is not conducted. More so when he did not request for it in the first place.

(iii) Failure to supply a copy of the findings of the 3rd Respondent and the complaint against the Applicant by the 2nd Respondent [37] It was alleged that the charge was defective as there was no complaint made against the Applicant and the disciplinary action was only based on the MC issued. Further, the 3rd Respondent did not inform the Applicant the outcome of the proceeding in 2011 after investigations were commenced against him and therefore, he assumed that the matter had been laid to rest when he was given only a verbal warning. But on the other hand, the Applicant claimed that he was denied the opportunity to explain in that proceeding. I am of the view that if what he claimed is true, being given a verbal warning showed that he had been given the opportunity to explain and informed of the outcome of the 2011 proceeding. The Applicant is “blowing hot and cold” at the same time on this issue. [38] The Applicant further contended that the Respondents did not supply the report received by the 2nd Respondent which formed the basis of commencement of the disciplinary action against him such as the complaints during the investigation in 2011. Upon perusal of the PPPA, the Regulations do not impose a duty to provide documents. In the case of Chai Kok Choi v. Ketua Polis Negara & Ors [2007] 2 MLRA 654; [2008] 1 AMR 93; [2008] 1 MLJ 725 [2008] 1 CLJ 113 the Federal Court stated that: “The Court of Appeal was also correct in holding that there is no added duty on the disciplinary authority to provide documents without any request being made by the offending officer”. [39] In T. Ganeswaran v Suruhanjaya Polis DiRaja Malaysia & Satu Lagi [2005] 3CLJ 302; [2005] 1 MLRA 493; [2005] 6 MLJ 97; [2005] 4 AMR 541 the Court of Appeal held as follows: S/N 4mxZooVjXEmjRq54w8a2MA “[6] Perayu tidak pernah memohon bagi mendapatkan dokumen-dokumen berkenaan pada bila-bila masa pun. Adalah menjadi tanggungjawab responden pertama membekalkan perayu dengan dokumen-dokumen berkenaan sekiranya terdapat permohonan dari perayu tetapi tidak sebaliknya.” [40] From the above cases, it appears that if a request is made for documents, failure by the relevant authority to provide it would constitute procedural impropriety. Nevertheless, in the present case upon perusal of the Applicant’s affidavits, I could not find any statement in the letter of representation dated 9.3.2020 where he requested for documents pertaining to the allegations against him. Therefore, there was no basis to complain that he had been denied the said documents. Moreover, in the representation letter the Applicant explained why he could not have impersonated Dr Mohan (paragraphs 5.1 to 5.4) and it appeared that he knew exactly how the complaint against him arose. The Applicant also gave a statement to Dr Norhasmaliza in 2011 wherein he admitted to doing certain actions, which I will elaborate later in this Grounds. It could not be said then that he did not know what charge he was supposed to meet when making his representation to the 1st Respondent.

(iv) Unreasonableness of the 1st Respondent in rejecting the Applicant’s explanation and appeal [41] Where unreasonableness is raised as a ground for judicial review, it is trite law that the Court can scrutinise not only the process but also the substance: Council of Civil Service Unions & Ors (supra). The facts pertaining to the alleged misconduct of impersonation have been laid out earlier in this judgment. [42] The complaints against the Respondents were that they failed to consider in detail whether the Applicant impersonated a Medical Officer, one Dr. Mohanraj A/L Sundram, on the date and time stipulated in the charges. It was submitted that the Respondents failed to investigate the proprietor of Poliklinik Ng, one Dr. Ng Boon Tong, as he was never called to give evidence in an inquiry. Moreover, the decision of 1st Respondent did not take into consideration that the substantive grounds forwarded by the Applicant in the termination of his services was not justified by the Respondents. It was the Applicant’s evidence that he had given substantive and valid grounds that S/N 4mxZooVjXEmjRq54w8a2MA he had not committed any wrong doing as alleged by the Respondents (refer to Enclosures 3, 9, 20 and 21). Instead, the 2nd Respondent that conducted the investigation made their own findings without giving an opportunity for the Applicant to be heard. Additionally, the investigation which was done in year 2011 was held only once and the Applicant was never given an opportunity to provide explanation on the actual situation that transpired then. The decision of the 1st Respondent to terminate his services was made after a lapse of almost 9 years wherein the Applicant had in fact since 2011 continued working as an Assistant Medical Officer in Hospital Taiping. The MC which the Applicant allegedly issued bore the signature and chop of Dr Ng who was the proprietor of the clinic. Therefore, the charges against the Applicant were baseless and unfounded. [43] Moreover, the termination of the Applicant by the 1st Respondent based on the contention of the 2nd, 3rd and 4th Respondents is allegedly without basis at all because in the investigation, only statements i.e. Percakapan Dalam Pemeriksaan under section 92 of the Private Healthcare Facilities and Services 1998 Act (“the 1998 Act”) were taken but no inquiry was held to determine the allegation against the Applicant. It was submitted that the Percakapan Dalam Pemeriksaan did not positively identify the Applicant. [44] At the material time, the investigation took place upon a complaint being made against Poliklinik Dr Ng in Kulim, and there was no complaint whatsoever or any reference made against the Applicant. As there had been no complaint against the Application after the MC incident, he contended that it clearly reflected the fishing expedition(s) which the 2nd, 3rd and 4th Respondents had embarked on. [45] Now, Dr Norhasmaliza recorded the Percakapan Dalam Pemeriksaan of the Applicant under the 1998 Act on 3.5.2011 at 11.35am, Exhibit NMN-7. The Applicant admitted he went to meet with an officer of UKAPS on 27.3.2010 (which was clearly a typo error as in the same page, the date was stated as 27.3.2011). He was told to go there by Dr Ng and give a statement. He said he was scared and confused and had given a document. He was afraid that he would be detained by the police. He alleged S/N 4mxZooVjXEmjRq54w8a2MA Dr Ng told him not to answer any call from UKAPS. The Applicant said he introduced himself as Dr Mohan as he was afraid he might be detained and he could not think properly. He had to show his identity card to the UKAPS officer. He admitted that he had gone into Dr Mohan’s room and taken the 2009 APC which was in a file on the table and faxed it to Dr Ng’s clinic. He admitted further that when he spoke to the UKAPS officer over the telephone, he introduced himself as Dr Mohan. On his connection with Dr Ng, the Applicant stated that he came to know Dr Ng through a friend and when he worked there, he was known as Dr Michael. [46] The Applicant stated that he made a mistake that morning when he did not realise he had faxed Dr Mohan’s APC because the recycled paper was used in the tray and he thought he was using recycled paper instead. The Applicant claimed he did not impersonate Dr Mohan. He said he told the truth when Dr Ng called him on the morning of 20.3.2011 and asked for the APC which he faxed the next day. He said he still wanted to work at the clinic and so he told him (Dr Ng) he had an APC. [47] The Applicant admitted it was his signature on the MC dated 9.2.2011 in the Exhibit in NMN-1. He had obtained permission from Dr Ng before he issued the MC. He did not know how much was charged for it as he only wrote on the MC. In respect of the fax machine in the office, the Applicant admitted he had access to it along with a few other staff. On the fated day, the patient came to ask for a backdated MC. He said it was illegal and then the nurse called Dr Ng. Dr Ng allegedly said the Applicant could issue the MC to the patient. The patient came was angry that the charge was too high for the said MC. He knew the patient was not ill and it was an offence to issue an MC to a person who was not ill. In the Q&A of the Applicant’s section 92 statement he admitted: “S: Adakah anda mengeluarkan sijil cuti sakit? J: Mengeluarkan sijil cuti sakit kepada pesakit yang telah siap dicop dan ditandatangani oleh saya S: Pada tarikh 12 February 2011 dari jam 6.30 petang hingga jam 11.00 malam di manakah anda berada? J: Saya buat locum di Poliklinik Dr Ng.”. S/N 4mxZooVjXEmjRq54w8a2MA [48] Dr Ng Boon Tong’s statement was taken on 21.3.2011 and again on 11.4.2011. In the first statement Dr Ng related what transpired when the patient came for the MC. Dr Ng stated he scolded the Applicant when he decided to issue the MC despite his reluctance earlier. In the second statement, he stated that Dr Michael worked as a locum there occasionally and he did not know his full name. He was shown Dr Michael’s APC about 2 years before that when he started working at the clinic. He seldom met Dr Michael but was able to describe him to the investigation officer. Dr Ng identified a photograph of the Applicant shown to him. He was also shown a photograph of Dr Mohan to which he said he did not know the person. [49] Percakapan Dalam Pemeriksaan under the 1998 Act was taken from Dr Mohan on 3.5.2011 at 10.30 am by Dr Norhasmaliza (Exhibit NMN-8) wherein he denied any involvement with the said clinic in Kulim, Kedah nor did he know Dr Ng. He also stated that he did not know his APC was faxed to the said clinic on 21.3.2011. He stated that his APC was kept in a drawer in his room and he did not know how it was faxed without his knowledge. Nevertheless, a duplicate of his room key was kept at the clinic counter. He also did not know who had access to the fax machine apart from the Head of the Department. He identified a photograph shown to him as that of the Applicant. He stated that the Applicant had access to the whole department as he was under the supervision of the Head of the Department. [50] Verification was obtained from the said clinic that “Dr Mohan Raj A/L Sundram” had worked at the said clinic between 6.00 pm on 12.2.2011 until 6.00 am on 13.12.2011 (refer to Exhibit NMN-2, a letter dated 2.1.2012 from the said clinic signed by Dr Ng Boon Tong). [51] It is to be noted that via letter dated 19.9.2011, the Lembaga Pembantu Perubatan of the Ministry of Health Malaysia had requested the Applicant to show cause within 2 weeks of the letter in respect of 3 allegations, namely, issuing the backdated MC, carrying on work outside of public service without a written approval of the Head of Department and breach of terms and conditions of section 10(3) of the Akta Pembantu Perubatan 1977 and Peraturan-Peraturan Pembantu Perubatan (Pendaftaran) 1979 for carrying out work on his own at a private clinic without direct S/N 4mxZooVjXEmjRq54w8a2MA supervision of a Medical Practitioner (Exhibit NMN-5). He did not respond to this letter and neither did he deny it in his affidavits. [52] During the substantive hearing of the application, Counsel for the Applicant submitted that the statement recorded from the Applicant was taken under duress. He submitted that 45 questions were posed to him in 75 minutes. The Applicant allegedly demonstrated that he was afraid and confused and not voluntarily given. He was unrepresented and not in the proper state of mind to answer the doctor's questions. Based on Dr Ng's instructions, he gave the statement. He was allegedly pressured by Norhasmaliza and no choice was given to him, whether he was in a state of mind to answer the questions. Counsel also complained that the APC was not exhibited by the Respondents. No “rekod kehadiran” that he appeared as Dr Mohan on that day was produced. They did not check with the service provider whether Dr Mohan was called. Moreover, Dr Ng said he was not sure about the identification of the Applicant’s photograph. The staff of Dr Ng by the name of “Finas” was not called to identify the Applicant, whether he was really working as Dr Mohan or Dr Michael, and to obtain information about the APC. The said staff could have resolved the whole matter if they called her as a witness. He submitted that there were many gaps in the investigation. [53] The 1st Respondent’s Affidavit in Opposition (Enclosure 19) denied the allegations by the Applicant. He stated: “14. (c) … Berdasarkan peruntukan Peraturan-Peraturan Lembaga Tatatertib Perkhidmatan Awam 1993 [P.U (A) 396/1993], pihak berkuasa tatatertib membuat pertimbangan dan keputusan secara mesyuarat setelah meneliti segala dokumen yang berkaitan seperti surat pertuduhan dan representasi Pemohon. …

Perenggan 10 Afidavit Sokongan tersebut adalah dinafikan dan saya menegaskan bahawa Pemohon tidak pada bila-bila masa dipecat atau ditamatkan perkhidmatan di bawah undang-undang. Pemohon telah diambil tindakan tatatertib di bawah undang-undang yang sah dan dihukum dengan hukuman buang kerja. Selanjutnya, saya ingin menegaskan bahawa segala tindakan yang telah diambil oleh SPA adalah teratur, mengambil kira aiasan yang sahih, berjustifikasi dan mematuhi semua prosedur di bawah PPPA. Oleh itu, keputusan yang telah dibuat terhadap Pemohon adalah sah berlandaskan kepada PPPA tersebut. S/N 4mxZooVjXEmjRq54w8a2MA

Perenggan 11 Afidavit Sokongan tersebut adalah dinafikan dan Pemohon diletakkan dengan beban pembuktian yang kukuh. Saya selanjutnya menyatakan bahawa isu ini tidak pernah dibangkitkan di dalam representasi bertarikh 9.3.2020 dan oleh itu saya menegaskan bahawa isu ini adalah merupakan suatu pemikiran semula (afterthought) di pihak Pemohon.

Perenggan 12 secara keseluruhannya Afidavit Sokongan tersebut adalah dinafikan dan Pemohon diletakkan dengan beban pembuktian yang kukuh. Saya selanjutnya menyatakan seperti berikut:

Merujuk kepada perenggan 12(1) Afidavit Sokongan, saya menafikan pernyataan dalam perenggan tersebut dan menyatakan bahawa SPA telah mendapati Pemohon melakukan kesalahan menipu secara menyamar sebagai Pegawai Perubatan Berdaftar bernama Dr Mohan Raj a/l Sundram pada tarikh yang dipertuduhkan;

Merujuk kepada perenggan 12(2) Afidavit Sokongan, saya menafikan pernyataan dalam perenggan tersebut dan menyatakan bahawa Pemohon gagal mengemukakan sebarang bukti bagi menyokong dakwaan ini;

Merujuk kepada perenggan 12(3) Afidavit Sokongan, saya menafikan pernyataan dalam perenggan tersebut dan menyatakan bahawa pada tarikh dan masa yang material, bukti yang dikemukakan oleh Dr. Ng Boon Tong menunjukkan doktor yang bertugas di antara jam 6.00 petang 12.2.2011 sehingga 6.00 pagi 13.2.2011 di Poliklinik Ng bernama Dr Mohan Raj a/l Sundram dan bukannya Pemohon;

Merujuk kepada perenggan 12(4) Afidavit Sokongan secara keseluruhannya, saya menafikan pernyataan dalam perenggan tersebut dan menyatakan seperti berikut:

bahawa Pemohon gagal mengemukakan sebarang bukti bagi menyokong dakwaan-dakwaan di dalam perenggan tersebut dan oleh itu ia adalah sekadar dakwaan kosong sahaja;

(ii)

(ii) bahawa tiada keperluan untuk sesuatu siasatan bagi kesalahan tatatertib diadakan berulang kali di bawah mana-mana undang-undang; dan

(iii)

(iii) bahawa tiada keperluan untuk Pemohon dimaklumkan akan keputusan siasatan; bahawa siasatan yang dilakukan terhadap Pemohon adalah teratur dan sah di sisi perundangan.”. [54] It must be remembered that Dr Mohan had denied ever working at the said clinic whereas the Applicant admitted to working there at the material time. This was a fact that the Applicant could not deny. Upon perusal of his Affidavit in Support (Enclosure 3) and Affidavit in Reply (Enclosure 21) to Dr Norhasmaliza’s Affidavit in S/N 4mxZooVjXEmjRq54w8a2MA Opposition (Enclosure 18) I find that the Applicant was not able to raise any valid challenge to the contents of Enclosure 18 and it was mainly a bare denial. In fact, the Applicant contradicted himself as follows: In Enclosure 3 paragraph 12: “(3) Kerja saya di Poliklinik Ng adalah sama seperti pekerjaan di Klinik Kesihatan iaitu merawat pesakit dan membuat prosedur dengan pemerhatian (supervision) oleh Dr Ng, selalunya dari rumah. (Mengikut Akta 1980 Pembantu Perubatan). Disini saya ingin menekankan bahawa staf dan juga pesakit di Poliklinik Ng seperti mana di klinik kesihatan mengelar saya Doktor Michael dimana nama Michael merupakan nama penggilan saya sejak lahir lagi. Sebagaimana di Klinik Kesihatan, saya akan senantiasa menghubungi Dr Ng untuk bantuan. Hanya Dr Ng sahaja tahu situasi yang sebenar.” In Enclosure 21 paragraph 6: “6. Dalam merujuk kepada perenggan 6(d) kepada Afidavit Jawapan Responden Kedua saya tidak tahu menahu siapa dia Dr Michael yang buat locum di Poliklinik Dr Ng dan meletak Responden Kedua kepada pembuktian yang kukuh dan terperinci kepadanya.” [Emphasis added] [55] To my mind, this material contradiction to a certain extent affected the credibility of the Applicant and the Court need not even rely on the section 92 statement given by the Applicant and which contents he vehemently denied. The Applicant claimed that he was in a state of confusion and afraid when he gave the statement to Dr. Norhasmaliza, but I am of the view that he was evasive in his answer which was why she reminded him that he had a duty to speak the truth. I also find that the issues raised that the investigation was not thorough and that the 1st Respondent did not conduct and investigation at the said clinic are mere afterthoughts. The 1st Respondent is entitled to make such findings and reject the Applicant’s representation when it has considered all facts before it. [56] On another note, pertaining to the issue of the 1st Respondent arbitrarily denying his appeal without giving due consideration to the grounds he raised in his defence, the 1st Respondent had stated: S/N 4mxZooVjXEmjRq54w8a2MA “15. Perenggan 9 Afidavit Sokongan tersebut adalah dinafikan dan Pemohon diletakkan dengan beban pembuktian yang kukuh. Saya menegaskan bahawa tiada hak membuat rayuan kepada SPA dipefuntukkan kepada Pemohon di bawah mana-mana undang-undang kerana berdasarkan prinsip “functus officio”, SPA tidak mempunyai kuasa untuk menimbang semula keputusan yang telah dibuat berkaitan tindakan tatatertib terhadap Pemohon. Selanjutnya, saya ingin mengulangi semula kenyataan saya seperti di Perenggan 8 hingga 11 di atas.”. [57] The learned High Court Judge in the Noraini Binti Hj Rasi’s Case stated: “37. Further, I find that there is no provision in the said Regulations on the right to appeal to the Disciplinary Appeal Board against the decision made by the SPA.

I find support in my view by referring to the case of Vijayarao Supermaniam v. Suruhanjaya Perkhidmatan Awam, Malaysia [2018] 9 CLJ 141; [2018] 6 MLRA 263; [2018] 12 MLJ 17; [2018] 6 AMR 321 where the Federal Court held as follows: [38] Thus, the power to dismiss or reduce in rank an officer in the Top Management Group and the Managerial and Professional Group can only be exercised by the PSC, the respondent in the present appeal. This is clearly provided for in reg. 5(1) of the PSDB Regulations. The Disciplinary Board established under reg. 2(1) has no such power or jurisdiction to deal with such proceedings. [42] The disciplinary proceeding against the appellant, which resulted in his dismissal from the public service, was initiated and conducted by the PSC in its capacity as a Disciplinary Board by virtue of its powers under reg. 5(1) of the PSDB Regulations. It has the necessary jurisdiction to do so. There is nothing improper in law. This is because the PSC is the only body or authority empowered to deal with matters involving disciplinary proceedings against an officer in the Managerial and Professional Group with a view to dismissal or reduction in rank. There is no avenue for appeal provided for in the PSDB Regulations. If the appellant is aggrieved wit the decision of the PSC in dismissing him, he has the liberty to apply for judicial review at the High Court as what had been done in the present case. [43] to conclude on this issue, we agree with the submission of learned SFC that the reliance by the appellant solely on art. 144(5B)(ii) of the Federal Constitution is not correct. It was based on a misconstrued interpretation of that provision. We are of the view that the appellant was never denied the right to appeal in the present case as the powers and functions provided for under art. 144(5A) and (5B) of the Federal Constitution read together with the provisions of and Schedule to the PSDB Regulations did not provide for such powers, to receive, hear, consider and decide on any appeal. Therefore we answer question 1 in the negative, ie, that on the facts of S/N 4mxZooVjXEmjRq54w8a2MA the present case, the appellant had no constitutional right to appeal to the Appeal Board against the decision of the PSC under art. 144(5B)(ii) of the Federal Constitution.” [Emphasis added] [58] As stated earlier, the role of the Court is to review the decision-making process and to determine whether there are errors in that process. Therefore, the Court is not concerned on whether the disciplinary authority has made the right or wrong decision. In the present case, the Court views that in the challenge surmounted by the Applicant under this ground of unreasonableness, the Applicant is actually inviting the Court to make a determination that the decision of the 1st Respondent is wrong on the merits. It is not a challenge on procedural impropriety, and the Court will not interfere with the decision made by the 1st Respondent to dismiss the Applicant as the Court finds that there is nothing wrong with the conduct of the matter when the allegation of misconduct is brought before the 1st Respondent in May 2019. [59] It is pertinent to note that the charge was that the Applicant “menipu secara menyamar sebagai Pegawai Perubatan Berdaftar dengan menggunakan pengenalan diri Dr. Mohan Raj” while he was working as a locum at the said clinic between 6.00 pm on 12.2.2011 and 6.00 am on 13.2.2011 whereas Dr Mohan was working at the Jabatan Ortopedik, Hospital Taiping. The Applicant’s point of contention was that he had never impersonated Dr Mohan while he was working at the said clinic. By his action, it was alleged that the Applicant had contravened regulation 4(2)(d), (f) and (g) of the PPPA where he had “(d) berkelakuan dengan sedemikian cara sehingga memburukkan nama atau mencemarkan nama perkhidmatan awam, (f) tidak jujur atau tidak amanah and (g) tidak bertanggungjawab”. The elements of the charge to be proved are: i. that the Applicant while working as an Assistant Medical Officer Grade U32 at Taiping Hospital; ii. the Applicant committed an offence of cheating by impersonating as a Registered Medical Officer; iii. by using the identification of Dr Mohan (full name, IC NO and No. APC 2723/2009); S/N 4mxZooVjXEmjRq54w8a2MA iv. while carrying out work outside (locum) at Poliklinik Dr Ng at Kulim, Kedah; v. between 6.00 pm on 12.2.2011 and 6.00 am on 13.2.2011; and vi. Dr Mohan was a Medical Officer (Grade U54) working at the Jabatan Ortopedik, Hospital Taiping at the material time. [60] The investigation and evidence gathered by Dr Norhasmaliza led the doctor to: i. the said clinic; ii. the Applicant who was identified as “Dr Michael” (the personnel who issued the said MC); iii. the Applicant was carrying out work outside (locum) at Poliklinik Dr Ng at Kulim, Kedah; iv. between 6.00 pm on 12.2.2011 and 6.00 am on 13.2.2011; v. the Applicant who was an Assistant Medical Officer at Hospital Taiping (Grade U32) at the material time; vi. the APC of Dr Mohan that was faxed to the said clinic by the Applicant on 21.3.2011; vii. the Applicant’s telephone number was obtained from the said clinic and he was asked to give a statement; viii. Dr Mohan at Jabatan Ortopedik, Hospital Taiping, a Grade U54 Registered Medical Officer who denied his involvement; ix. the Applicant who on 27.3.2011 gave Dr Mohan’s name when he identified himself to UKAPS but did not produce his identity card or driving licence to prove his acual identity; x. the said clinic issued a letter which confirmed that Dr Mohan (with his full name, IC No and APC No. 2327/2009), worked on between 6.00 pm on 12.2.2011 and 6.00 am on 13.2.2011. [61] Upon investigation of the MC complaint, the facts surfaced that the Applicant was the person working at the said clinic at the material time. On 21.3.2011, he faxed Dr S/N 4mxZooVjXEmjRq54w8a2MA Mohan’s practicing certificate for the year 2009 when he identified himself to UKAPS as Dr Mohan. Having perused the charge as exhibited in Exhibit TZR-1, although it may not be perfect, nevertheless it could be seen that the Applicant was charged for misconduct under Reg. 4(2)(d), (f) and (g) because the 1st Respondent viewed that his conduct had raised a reasonable suspicion that he had misrepresented himself to be a registered medical doctor which he was not; his actions had brought disrepute to the public service, he was dishonest, untrustworthy and irresponsible to the public because he was not a qualified medical doctor but claimed to be such. Therefore, as the Applicant’s explanation in his letter dated 9.3.2020 was not exculpatory, the 1st Respondent concluded and found that the Applicant had committed an offence of cheating by impersonating as a Registered Medical Officer when he used the identification of Dr Mohan (No. APC. 2723/2009) while carrying out locum work at the said clinic between 6.00 pm on 12.2.2011 until 6.00 am on 13.2.2011. [62] Similarly, I find that the Applicant cheated UKAPS when he used Dr Mohan’s identification on 21.3.2011 where he identified himself to UKAPS as “Dr Mohan” instead of giving his name as “Sivakumar a/l Narayana Samy” and faxed the APC to the said clinic. The cheating element was after the fact of the MC complaint. The clinic confirmed that Dr Mohan worked as a locum doctor from 6.00 pm 12.2.2011 until 6.00 am on 13.2.2011. Dr Mohan denied he was connected to the said clinic at all, directly or indirectly. Dr Ng could not identify Dr Mohan but he identified the Applicant as the person who worked at the said clinic. The charge must be read carefully within the context of the chronology of the facts as discovered by Dr Norhasmaliza in her investigation. In my considered view, the 1st Respondent had exercised its discretion under the PPPA in accordance with its procedures as it found him to have brought disrepute to the good name of the public service, he was dishonest, untrustworthy and irresponsible. Hence, the findings made by the 1st Respondent in respect of Reg. 4(2)(d), (f) and (g) are not reviewable by this Court.

(vi) Termination was wrongful and contravened the Government Proceedings Act as the 3rd and 4th Respondents did not reply to the Affidavit [63] This ground was raised because the 3rd and 4th Respondent did not reply to the Applicant’s affidavits. The Applicant also claimed that it could be inferred the 3rd and S/N 4mxZooVjXEmjRq54w8a2MA 4th Respondents did not file in their Affidavit in Opposition because they were wrong to have subjected him to the dismissal by the 1st Respondent. [64] Dr Norhasmaliza denied that the 2nd Respondent had ever made a decision to dismiss the Applicant because it did not have the jurisdiction to reinstate or return the Applicant to his former position. Neither did the 2nd Respondent make any decision pertaining to his appeal. She reiterated that she was the Investigation Officer who conducted investigation in this case. From her investigation, she and UKAPS found that the Applicant had used the identification of Dr Mohan Raj and his APC. He had also worked as a locum doctor at the material time and admitted to all his actions. [65] Disciplinary action in respect of an officer is under the purview of the 1st Respondent and commenced in May 2019 upon receipt of a complaint from the Ministry of Health. The 2nd Respondent’s role was mainly in the investigations conducted in 2011. The 3rd Respondent was the employer of the Applicant and the 4th Respondent was a nominal respondent in this action. The Court finds that this argument is unsustainable as the allegations by the Applicant have been answered in the form of the Affidavits in Opposition by Tan Sri Zainal Rahim and Dr Norhasmaliza in Enclosures 19 and 18, respectively, to the Court’s satisfaction. v. Undue delay in the disciplinary action against the Applicant [66] It was the Applicant’s contention that there was undue delay in the disciplinary proceeding taken 9 years after the investigation was first commenced against him. Is this condonation by the authorities? The investigation conducted by the 2nd Respondent commenced in March 2011. The disciplinary proceeding commenced on 16.1.2020, 8 months after the 1st Respondent received the report from the Ministry of Health via letter dated 9.5.2019 (paragraph 7(h) of Enclosure 19). The Applicant was given an opportunity to respond to the charge and which he did almost 2 months later. The 1st Respondent considered his representation and dismissed the Applicant via letter dated 28.7.2020 which the termination was made effective on 6.7.2020. I am of the view that there is no delay on the part of the 1st Respondent and this had been sufficiently explained in Enclosure 19. The period taken by the 1st Respondent is reasonable taking into consideration there are procedures that need to be adhered to S/N 4mxZooVjXEmjRq54w8a2MA by the 1st Respondent as provided for under the PPPA. Reg. 26 governs the procedures in respect of commencement of disciplinary action for the purpose of dimissing or demoting an employee. It does not state a time frame for such action except that an employee shall be given a reasonable opportunity to be heard once the notification of disciplinary action has been given. [67] Moreover, there is no action, conduct or documents from the Respondents that may suggest condonation. In regard to paragraph 11 of the Applicant’s Affidavit in Support (Enclosure 3), Dr Norhasmaliza stated a disciplinary action was not the same as a trial in Court which required the presence of witnesses to give evidence as the former was a process of meetings to make a decision on the whole by scrutinising all documents before it. The 2nd Respondent had conducted investigations into the allegations against the Applicant and Dr Ng Boon Tong to take actions on the allegations received. From her investigation, she and UKAPS found that the Applicant had used the identification of Dr Mohan and his APC when he was asked to fax the document (which the locum stint was allegedly based on) and the Applicant claimed to have faxed the document “in a state of confusion” on 21.3.2011. [68] Delay per se does not tantamount to condonation. In the case of Public Services Commission Malaysia & Anor v. Vickneswary RM Santhivelu [2008] 2 MLRA 273; [2008] 6 MLJ 1; [2008] 6 CLJ 573 the Federal Court held as follows: “…It is clear from here that part of the delay in fact was attributable to the police for having taken four years before they made the decision not to proceed against him on criminal charges. It was therefore wrongfor the Court of Appeal to have concluded that the delay was attributed to the disciplinary authority. [32] Even if what is claimed by the respondent in his letter is accepted as true, the delay, as mentioned above was substantially caused by the police, and not the disciplinary authority. Delay by the disciplinary authority, even if it is considered as delay, was for a period of two and half years, instead of seven years as accepted by the Court of Appeal in its judgment.”. [69] In the present case, I find that it has taken the 1st Respondent about 2 years and 2 months to dispose of the disciplinary proceeding, which was reasonable. The Chairman of the SPA Disciplinary Board explained in his affidavit that after delivering its decision to dismiss, the Applicant then submitted an appeal to review the decision despite there being no right to appeal under the PPPA. Therefore, I am of the S/N 4mxZooVjXEmjRq54w8a2MA considered view that the 1st Respondent could not be held responsible for the period taken before the disciplinary acion was referred to it in May 2019. Moreover, it was contended by the 1st Respondent that the period of time taken to dispose of the case did not change the fact that the Applicant had committed a very serious offence by impersonating a Registered Medical Officer when he was not a qualified medical doctor and which could endanger a patient’s life. [70] I have considered the submissions and case laws cited by both parties. However, I do not agree with the submissions of the Applicant and I have relied on more established and recent cases on the points of law raised. For instance, Counsel relied on R Sambasivam v. Public Services Commission & Anor [1970] 1 LNS 125 and Surinder Singh Kanda v. Government of the Federation of Malaya [1962] 1 LNS 14 (PC) which held that the applicant’s dismissal from public service was improper as the letter of complaint that formed the basis of the disciplinary proceedings was not disclosed to him. This point has been answered earlier in this judgment; Chai Kok Choi (supra) and T. Ganeswaran (supra). The case of Rohana Ariffin v Universiti Sains Malaysia & Another Case [1988] 1 CLJ 559 (HC); [1988] 2 LJ Rep 350 could be distinguished on the facts because the Applicant did not request for discovery of documents and the 1st and 2nd Respondents are not obliged to give him the documents. [71] In Shamsiah Ahmad Sham v. Public Services Commission, Malaysia & Anor [1991] 1 CLJ(Rep) 419 (SC) it was held that the dismissal of the appellant was improper as the disciplinary tribunal conducted a private evidence gathering exercise on the complaint without notifying parties of the material attained. In Saufee A Rahman v. Che Yussof Che Ngah &Ors [2014] 7 CLJ 691 the Court of Appeal held that a police officer had been unlawfully dismissed as the disciplinary proceedings against him were conducted in a mechanical manner and without provision of the relevant material to him. And in Asri Herman v. Government of the Federation of Malaysia [2012] 1 CLJ 103 the High Court quashed the dismissal of a Dental Surgery Assistant at a public hospital as the disciplinary authority took into account material from a related case involving the applicant without informing parties and inviting representations on the same. In the present case, the Applicant knew he was being S/N 4mxZooVjXEmjRq54w8a2MA investigated and had also met Dr Norhasmaliza and gave his statement in the investigation. He was also given the right to representation by the 1st Respondent. [72] Overall, after a careful perusal of the documents and representation in this case as well as the Affidavits of both parties, the Court could not find anything therein which could suggest that the investigation and disciplinary action taken against the Applicant were tainted with malice on the part of the Respondents. The Court viewed that both deponents of the 1st and 2nd Respondents’ Affidavits in Opposition were merely carrying out their duties as public officers and did not have any reason to lie to the Court, whereas the Applicant’s interest is getting his job back and reinstated to his former position without any loss of salary, benefits, seniority and most importantly, his pension. The following case is a decision in an application for a writ of habeas corpus but nevertheless, the principle in respect of conflicting affidavits is the same. In the case of Pau Kiu Chuong v. The Deputy Minister of Home Affairs, Malaysia & Ors [Criminal Application No: 44-156-2011], the High Court held: “…Fourthly, it is also settled law that an application for a writ of habeas corpus is normally decided after a trial based on affidavits and it is for the court to determine based on the conflicting affidavits filed by the parties concerned as to which deposition contained in which affidavit ought to be believed and accepted and which deposition ought to be disbelieved and rejected (see the case of Ng Hong Choon v. Timbalan Menteri Hal Ehwal Dalam Negeri & 1 Lagi [1994] 4 CLJ 47).

The court found that the depositions of the respondents' representatives were consistent throughout and there was no contradiction in their depositions;

The court was of the view that they had no reason to lie in their depositions. They are public officers who were merely performing their official duties as opposed to the applicant who was an interested witness and was not averse to lying in order to secure his release (see Su Yu Min v. Ketua Polis Negeri & Ors. [2005] 3 CLJ 875, supra, Tey Ai Lee @ Alice ley (Kuala Lumpur Criminal Application No.: 44-98-2011 and Suthagar s/o Rajamoney v. The Deputy Minister of Home Affairs, Malaysia (Kuala Lumpur Criminal Application No.: 44- 130-2011), supra)…”. [73] Similarly in a judicial review application, it is a hearing based on affidavits filed by the parties. In the present case, the Affidavits in Opposition filed by the 1st and 2nd Respondents are consistent throughout with no material contradiction(s). Whereas the Court finds that the Applicant in his own affidavits has contradicted himself on a material fact pertaining to him working as a locum at the said clinic. S/N 4mxZooVjXEmjRq54w8a2MA [74] The period of time between the investigation in 2011 until May 2019 when the matter is referred by MOH to the 1st Respondent, is beyond its control. The Court relies on Vickneswary RM Santhivelu (supra) in this regard. The 1st Respondent has acted within a reasonable period of time of 2 years upon receipt of the complaint from the Ministry of Health. From the facts, the Court finds no condonation by the 1st Respondent because it never accepted the misconduct of the Applicant which happened in 2011. CONCLUSION [75] Therefore, the Court dismissed the Applicant’s application for judicial review against his dismissal from public service as there was no breach of the provisions of Article 135(2) of the Federal Constitution by the Respondents, in accordance with the principles of natural justice and procedural fairness. The Respondents prayed for costs of RM3,000.00 but the Court had taken into consideration the Applicant’s plea that he had lost his job and was facing hardship. Having considered this plea, the Court then made no order as to costs. Dated: 22 June 2022 (Noor Ruwena Binti Md. Nurdin) Judicial Commissioner High Court, Taiping For the Applicant: N. Ahilan (Messrs. N. Ahilan & Associates) For the Respondents: SFC Muhammad Fauzi Bin Md Yusof (Attorney General’s Chambers) S/N 4mxZooVjXEmjRq54w8a2MA S/N 4mxZooVjXEmjRq54w8a2MA