Wan Himratul Azna Binti Wan Harun v 1. Pengarah Hospital Serdang (WA-25-166-09/2016)

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1 IN THE HIGH COURT IN MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR, MALAYSIA APPLICATION FOR JUDICIAL REVIEW: WA-25-166-09/2016 BETWEEN WAN HIMRATUL AZNA BINTI WAN HARUN ... APPLICANT

Lampiran

Lampiran B, P.P 10/1995 yang menyatakan seperti berikut: Pegawai memerlukan penilaian semula untuk “Neuropathic Pain”. Disyorkan untuk menjalani 14 pemeriksaan oleh Ketua Jabatan Rehabilitasi Hospital Cheras dan diperiksa semula oleh Ahli Lembaga Perubatan setelah menerima laporan dari Ketua Jabatan Rehabilitasi.”. Subsequently, the Medical Board reconvened its sitting on 30.5.2016, however, “Ahli Panel Lembaga Perubatan tidak dapat membuat keputusan kerana Dr. Wan Himratul Azna binti Wan Harun tidak hadir ke penilaian fitness to work pada 19 April 2016 di Institut Kanser Negara, Putrajaya yang sepatutnya dijalankan oleh tiga (3) orang panel iaitu Dr. Siti Nor Aizah binti Ahmad, Pakar Neuropsychiatrist, Hospital Kuala Lumpur, Puan Noraini binti Darus, Psycologist Klinikal, Hospital Kuala Lumpur dan Cik Chan Pek Har, Pegawai Psikologi Klinikal seperti yang telah diputuskan oleh Ahli Lembaga Perubatan yang telah bersidang pada 4 Februari 2016.” (exhibit “DJDS-8” in the Respondents AIR (2), Enclosure 8). 15 (d) Decision of the 4th Medical Board dated 9.5.2019 The Applicant was examined and interviewed on 9.5.2019 and the report of the Medical Board was conveyed vide the 1st Respondent’s letter dated 28.5.2019 (exhibit “WH-2” in the Applicant’s Additional Affidavit affirmed on 22.8.2019, Enclosure 56 and exhibit “DRJ-26” in the Respondents’ Additional Affidavit affirmed by Dr. Rohana Binti Johan on 9.8.2019, Enclosure 53). The salient parts in the said report is reproduced below: “2. Lembaga Perubatan mengesahkan bahawa pegawai ini adalah: [X] sedang pulih dari Left Lower Limb Neuropathic Pain @ dan dijangka akan berupaya menjalankan kewajipan-kewajipan jawatan berdasarkan senarai tugas beliau. … Syor dan Maklumat Tambahan 16 Dr Wan Himratul Azna binti Wan Harun mengalami penyakit: 1. Neuropathic Pain of Left Lower Limb 2. Bronchial Asthma 3. Urticaria Disyorkan bahawa beliau mendapatkan rawatan yang optima khusus untuk masalah Neuropathic Pain of Left Lower Limb. Rawatan yang disarankan adalah rawatan untuk mengawal kesakitan sakit kronik beliau (chronic pain management) dan rawatan rehabilitasi. Rawatan ini boleh didapati di hospital kerajaan. Berdasarkan interaksi beliau bersama Panel Lembaga Perubatan, didapati beliau seorang Pegawai yang bersikap positif serta berpotensi. Dengan itu, panel memutuskan bahawa beliau boleh kembali semula bertugas untuk mencapai potensi sepenuhnya walaupun mengalami masalah kesihatan. Penempatan yang disarankan adalah di fasiliti Kementerian Kesihatan Malaysia yang menyediakan rawatan rehabilitasi dan pada masa yang sama membolehkan beliau menjalankan tugas-tugas non clinical seperti penyelidikan dan kualiti.”. 17 Preliminary objection by the Respondents [10] When this matter came up for hearing before Faizah Jamaludin JC (as Her Ladyship then was) on 27.12.2018, the learned Federal Counsel (‘FC’) had raised a preliminary objection that, based on the Written Submission dated 21.12.2018 (‘said Submission’), the Applicant was challenging the following action, omission and/ or decision for which leave to challenge the same was not obtained pursuant to O. 53, r. 3(1) RoC 2012: (a) decision with respect to half-pay leave and no-pay leave; (b) the delay in referring the Applicant to the Medical Board; (c) decision of the Medical Board dated 25.11.2013; (d) the issue of negligence; and (e) the alleged breach of Article 13 of the Federal Constitution. 18 Therefore, the Respondents orally submitted that the Court is not seized with the jurisdiction to deliberate and decide on the foregoing issues. Justice Faizah then directed learned counsels representing the parties to file written submissions on the preliminary objection. [11] Having been tasked to continue with the hearing of this matter, and the decision of the fourth Medial Board having been given on 9.5.2019 and parties having affirmed and filed Additional Affidavits in August 2019 (Enclosures 53 & 54 for the Respondents and Enclosure 56 for the Applicant), on 3.9.2018, I enquired as to whether the Respondents wished to pursue the preliminary objection. The FC replied in the affirmative and thus, I proceeded to consider the parties’ oral and written submissions and thereafter decided that I would allow the Respondents’ objection in respect of the parts in the Applicant’s submission which appear to tantamount to challenging – (a) the decision made in relation to the Applicant’s application for half pay and no pay leave; 19 (b) any omission to refer the Applicant to the Medical Board earlier than the end of 2013; and (c) the decision of the 1st Medical Board on 15.1.2014. [12] Before I elaborate on my reasoning for the above findings, in so far as the other two issues pertaining to negligence and alleged breach of Article 13 of the Federal Constitution, it is suffice for present purposes to surmise that – (a) I had accepted Mr. Raam Kumar’s contention that the Applicant is well aware of her cause of action and the reliefs being sought, and that the word “kecuaian” wherever they appear in the said Submission, namely – “17. Ini dapat dilihat apabila Responden-Responden mula menguruskan kelulusan cuti sakit Pemohon bagi tahun 2011 dan 2012 pada tahun 2013 (sila rujuk eksibit WH-9). Sikap sambil lewa dan kecuaian Responden-Responden dalam menguruskan cuti sakit Pemohon telah kemudiannya menyebabkan gaji Pemohon ditahan semenjak Mac 2013 sehingga November 20 2016. Pemohon berhujah bahawa ianya adalah merupakan tanggungjawab Responden-responden dalam menguruskan cuti sakit Pemohon. Pemohon pada masa yang material telah menghantar cuti sakit kepada Responden Pertama sewajarnya. Ini tidak dinafikan oleh Responden Pertama. Tidak ada usaha Responden-responden untuk mengambil tindakan dari awal supaya Pemohon dirujuk kepada Lembaga Perubatan. Pemohon hanya durujuk kepada Lembaga Perubatan pada hujung tahun 2013, setelah Pemohon bercuti sakit panjang pada tahun ketiga yang mana ianya bertentangan dengan Peraturan 17 Perintah-perintah Am Kerajaan. 18. Akibat daripada kecuaian dan/atau kegagalan Responden Pertama dalam menguruskan cuti sakit Pemohon secara teratur, telah menyebabkan Pemohon terpaksa menfailkan tindakan ini terhadap Responden-responden. Hak Pemohon terhadap gaji bulan telah disekat bagi tempoh beberapa bulan sejak bulan Mac 2013 sehingga tahun 2016 dan berterusan.”, are merely to express the Applicant’s disappointment against the Respondents. The word “kecuaian”, when read in the context of the submissions as a whole, cannot be taken to 21 mean that the Applicant’s cause of action has taken a turn from an application for judicial review to one premised on the tort of negligence; and (b) para 1(vi) in Enclosure 1 and para 2(vi) in Enclosure 2 state that one of the reliefs sought by the Applicant is for damages and/ or compensation “akibat penafian hak-hak yang diperuntukkan di bawah Perlembagaan Persekutuan”. Having combed all the Affidavits affirmed by the Applicant, it is apparent that the averments pertain mainly to the issue of “penahanan dan penghentian gaji” by the Respondents, for example, in para 23 AIS, the Applicant affirmed that: “Saya telah membangkitkan pertanyaan mengenai penahanan dan penghentian gaji saya kepada Responden-Responden tetapi tidak mendapat sambutan dan tindakan. Saya telah menulis e-mel kepada Datuk Norazman bin Ayob, Setiausaha Sulit Kanan kepada Ketua Setiausaha Negara pada 23.4.2013 untuk bertanya kedudukan saya dan situasi berhubung dengan penahanan gaji saya. Saya telah menerima balasan pada hari yang sama dan 22 dimaklumkan tindakan akan diambil. Hasil daripada penahanan dan penghentian gaji tersebut, saya mengalami pelbagai masalah kewangan. Saya mempunyai anak-anak untuk dijaga, perbelanjaan rawatan hospital swasta dan komitmen kewangan yang lain untuk dipenuhi. …”. Further in para 48 AIS, it was affirmed that: “Hasil daripada tindakan Responden-Responden dan/atau ketinggalan yang secara langsung atau melalui pekerja, petugas dan kakitagannya, saya telah mengalami masalah kewangan yang teruk, penyeksaan mental, tekanan emosi, kekurangan kualiti kehidupan, menjejaskan corak dan rutin kehidupan, terpaksa menjual asset yang terkumpul selama bekerja, kemusnahan prospek kerjaya, pandangan serong masyarakat, kehilangan rakan tempat kerja, hilang rasa hormat ahli keluarga dan anggota masyarakat dan penghinaan yang tidak wajar.”. In para 63 of the said Submission, the Applicant submitted that: “… berdasarkan prinsip-prinsip undang-undang diatas, Pemohon telah menepati peruntukkan seksyen 44 23 Akta Relif Spesifik 1950 tersebut. Pemohon telah dinafikan haknya terhadap gajinya sebagai seorang pegawai perubatan pakar yang merupakan tanggungjawab Responden-Responden untuk membayar gaji-gaji Pemohon yang kekal tertunggak kerana kegagalan Responden-responden menjalankan tugas dengan sewajarnya. Dengan kegagalan Responden-responden membayar gaji Pemohon ini menunjukkan Responden-responden telah menafikan hak Pemohon seperti yang termaktub di Perkara 13 Perlembagaan Persekutuan.”. The Federal Court in Minister of Finance, Government of Sabah v. Petrojasa Sdn Bhd [2008] 5 CLJ 321 at p 334 had cited Article 13 of the Federal Constitution and held that “[33] … mandamus may issue for the purpose of enforcing the right of a person who has been deprived of his property not in accordance with law. Here, the respondent has obtained a judgement. There is a judgement debt owed to him. Payment has not been made. Upon obtaining the certificate, it becomes a statutory duty of the State Government of Sabah to make payment. By not paying, clearly the State Government of Sabah has deprived the respondent of its property contrary to law.”. 24 Salary which is legally due to an employee and payable by an employer is the property of the employee who has given his labor for it. Hence, the Applicant is not prevented from making any reference to the Articles in the Federal Constitution which are contended to be applicable in the instant case, including Article 13, in the said Submission. [13] As regards the parts in the submissions of the parties which pertain to relief (iii) in Enclosure 7 for a mandamus order to be issued for the Medical Board to make its decision, Mr. Raam Kumar had indicated during the case management on 16.7.2019 that the said relief has been rendered academic in light of the decision of the 4th Medical Board on 9.5.2019 and the Applicant would no longer need to pursue this remedy. 25 Judicial review of (i) the decision with respect to half-pay leave and no-pay leave; (ii) the delay in referring the Applicant to the Medical Board; and (iii) the decision of the Medical Board dated 25.11.2013 - Submissions by the parties [14] On 28.11.2012, the Applicant had applied for the following leave (refer exhibit “WH-5” AIS): (a) 46 days leave (cuti rehat) from 3.12.2012 until 13.2.2013; (b) half pay leave for 124 days from 14.2.2013 until 17.6.2013 on the ground of “Masalah Kesihatan”; and (c) no pay leave for 360 days from 18.6.2013 until 12.6.2014 on the same ground. [15] The decision with respect to the application for half pay leave and no pay leave was communicated to the Applicant by way of the 1st Respondent’s letter dated 17.5.2013 titled “PERMOHONAN 26 KEDUDUKAN STATUS PUAN DAN CUTI” (exhibit “WH-11” AIS) wherein it was stated that: “… 2. Adalah dimaklumkan bahawa status cuti puan pada tahun 2011 telah dipanjangkan kepada suami puan En. Roslan pada 9 Mei 2013 melalui surat … bertarikh 12 April 2013. Status cuti pada tahun 2012 belum mendapat keputusan daripada pihak JKNS. 3. Untuk makluman puan, permohonan Cuti Separuh Gaji dan Cuti Tanpa Gaji atas sebab kesihatan tidak dapat diproses kerana sebagai syarat cuti berkenaan hendaklah diluluskan oleh Lembaga Perubatan. Sehubungan itu, pihak kami telah mengeluarkan surat kepada puan bertarikh 17 Januari 2013 dan surat berkenaan telah pun diterima oleh puan pada 23 Januari 2013 bagi mendapatkan Laporan Perubatan terkini untuk dipertimbangkan ke Lembaga Perubatan. Sehingga kini, pihak kami belum menerima Laporan Perubatan yang diminta. Mohon kerjasama puan untuk mengemukakan Laporan Perubatan terkini dengan kadar yang segera untuk proses seterusnya. …”. 27 [16] The Respondents submitted that in the event the Applicant is aggrieved by the said decision, she should have filed a judicial review application in accordance with O. 53 RoC 2012. Further, the Applicant has to comply with the requirement for leave to be first obtained within the time prescribed under the same provision as laid down by the Federal Court in Mersing Omnibus Co. Sdn. Bhd. v The Minister Of Labour & Manpower & Anor [1983] 2 CLJ 7. [17] In the instant case, the Applicant should have sought leave to commence judicial review application by or before 17.8.2013 to come within the three months’ time period as prescribed by O. 53, r. 3(6) RoC 2012. It was additionally contended that the Applicant’s submission in respect of half-pay leave and no pay leave has no relevance to the relief sought as per prayer (i) in Enclosure 7, namely for a mandamus order requiring the Respondents and/ or each one of them to pay the Applicant the full outstanding salary in the amount of RM407,139.75 as at February 2016 and continuing. [18] Next, the FC submitted that by virtue of para 17 of the said Submission which reads: 28 “17. Tidak ada usaha Responden-Responden untuk mengambil tindakan dari awal supaya Pemohon dirujuk kepada Lembaga Perubatan. Pemohon hanya dirujuk kepada Lembaga Perubatan pada hujung tahun 2013, setelah Pemohon bercuti sakit panjang pada tahun ketiga yang mana ianya bertentangan dengan Peraturan 17 Perintah-perintah Am Kerajaan.”, the Applicant had contended that there was delay in referring the Applicant to the Medical Board. However, this does not form part of the Applicant’s ground for filing the judicial review application as reflected in para 3(e) of Enclosure 2. This, it is said, is contrary to O. 53, r. 3(2) RoC 2012. Furthermore, the Applicant’s grievance with respect to this matter arose at the end of 2013 and therefore, the Applicant is out of time to challenge the said decision. [19] Moving on to the decision of the Medical Board dated 25.11.2013 which was communicated to the Applicant vide letter from the 1st Respondent dated 15.1.2014 (exhibit “WH-13” AIS), the FC similarly argued that in the event the Applicant is aggrieved by the said decision, the Applicant ought to have filed an application for leave to 29 commence judicial review by or before 15.4.2014, but no leave nor an extension of time was sought. [20] Basically, the Respondents’ preliminary objection revolves around the central issue that the Applicant is seeking to circumvent the stringent requirement of O. 53 RoC 2012 by introducing the three above mentioned matters in the said Submission. However, based on the authority of Mersing Omnibus Co.(supra), the Court is said not to be seized with the jurisdiction to review the decisions concerned, and therefore, the Applicant’s submissions on these aspects should be disregarded by the Court. [21] Learned counsel for the Applicant submitted that the cases cited by the FC have no utility to the Respondents’ case for the following reasons: (a) the facts in Mersing Omnibus Co. can be distinguished from the facts in the present case since the former involved the issue of non-compliance with procedure viz. the application for leave for certiorari was filed out of time and neither party took objection 30 to it, whereas here, the issue of half-pay and no-pay leave, delay in referring the Applicant to the Medical Board and the decision dated 25.11.2013 had been raised in the Applicant’s affidavit and answered by the Respondents in their Affidavit In Reply (‘AIR’); (b) the objections raised in the submissions were never raised in the Respondents’ affidavits. Hence, on the authority of Yoong Sze Fatt v Pengkalen Securities Sdn Bhd [2011] 4 MLJ 805, the FC is estopped by conduct from raising the preliminary objection; and (c) parties are bound by their pleadings and by failing to contradict and/ or to object to the issues in their affidavits, the Respondents must be deemed to have admitted and/ or accepted the Applicant’s allegations. The case of Alloy Automotive Sdn Bhd v Perusahaan Ironfield Sdn Bhd [1986] 1 MLJ 382 was cited to support the argument. 31 [22] The Applicant also took issue with the fact that the FC raised the preliminary objection without giving any written notice to the Applicant’s counsel of the intention to do so and the timing of the objection which was after the Applicant’s counsel had completed his oral submissions. Mr. Raam Kumar argued, with reference to Yu Gui v Jeffery Siew Su & Ors [2016] 1 MLJ 102 and Dayang Khatijah Bt Jahan & Ors v Pentadbir Tanah Daerah Seberang Perai Utara Pulau Pinang [2018] 9 MLJ 22, that this shows that the objection was not made bona fide. - Analysis and decision of the Court [23] It is trite that all applications to challenge the decision of public authorities must be done by an application for judicial review and the procedure involved is governed by Chapter VIII of Part II in the Specific Relief Act 1950 [Act 137] (‘SRA 1950’) and the inherent powers granted to the court under sub-s 25(2) of the Courts of Judicature Act 1964 [Act 91], specifically para 1 of the Schedule. Since the present dispute involves substantive principles of public 32 law, O. 53 RoC 2012 provides for the appropriate procedure to be followed: see Ahmad Jefri bin Mohd Jahri @ Md Johari v Pengarah Kebudayaan & Kesenian Johor [2010] 3 MLJ 145; [2010] 5 CLJ 865 and Gan Chong Guan Transport Sdn Bhd v Ketua Pengarah Jabatan Pengangkutan Jalan Malaysia [2012] 2 CLJ 389. [24] It is therefore useful at the start to set out the rules in RoC 2012 relating to applications for judicial review which were referred by the FC in her submissions (with my added emphasis) and some additional provisions which I consider relevant to provide a proper understanding as to the context in which these provisions are to be read: “Applications (O. 53, r. 2) 2. (1) An application for any of the reliefs specified in paragraph 1 of the Schedule to the Courts of Judicature Act 1964 (other than an application for an order of habeas corpus) shall be in Form 109. (2) An application for judicial review may seek any of the reliefs, including a prayer for a declaration, either jointly or in 33 the alternative in the same application if it relates to or is connected with the same subject matter. (3) Upon the hearing of an application for judicial review, the Court shall not be confined to the relief claimed by the applicant but may dismiss the application or make any orders, including an order of injunction or monetary compensation: … (4) Any person who is adversely affected by the decision of any public authority shall be entitled to make the application. Leave (O. 53, r. 3) 3. (1) An application under this Order shall not be made unless leave therefor has been granted in accordance with this rule. (2) An application for leave must be made ex parte to a Judge in Chambers and must be supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought, and by affidavits verifying the facts relied on. … 34 (6) An application for judicial review shall be made promptly and in any event within three months from the date when the grounds of application first arose or when the decision is first communicated to the applicant. (7) The Court may, upon an application, extend the time specified in rule 3(6) if it considers that there is a good reason for doing so. …”. [25] O. 53 RoC 2012 envisages a two stage process; an Applicant must first obtain leave and convince the Court that he has a prima facie case to submit based on the facts stated in his application. If the Court is satisfied that the application is not frivolous and vexatious, and leave is granted, the Applicant must then file the substantive motion within 14 days after the grant of such leave and serve the same on all persons directly affected by the application not later than 14 days before the date of hearing stated in the substantive motion (see Tang Kwor Ham v Pengurusan Danaharta Nasional Bhd [2006] 5 MLJ 60). 35 [26] Hence, it is trite that an application for judicial review must be preceded with the grant of leave by the Court; without leave, the Court has no jurisdiction to hear the application. The failure to comply with O. 53, r. 3(1) RoC 2012 is not a mere technical non-compliance or formality as it goes to the core issue of the jurisdiction of the Court (see SDB Damansara Sdn Bhd v Datuk Bandar Kuala Lumpur (No 1) [2011] 9 MLJ 666). [27] As for the phrase “adversely affected” in O. 53, r. 2(4) RoC 2012, the Court of Appeal in QSR Brands Bhd v Suruhanjaya Sekuriti [2006] 3 MLJ 164 held that a flexible approach is to be applied in determining whether an Applicant meets the threshold locus standi test. In the instant case, it can be said that the Applicant has sufficient personal interest in the legality of the action impugned as it affects, inter alia, payment of her salary and the issue of whether she is capable of discharging the duties of her office or otherwise. [28] Compliance with time as provided under O. 53, r. 3(6) RoC 2012 is imperative, and failure to do so, is again not tantamount to a mere technical non-compliance. Compliance with the time frame prescribed 36 by the rules is fundamental as it goes to jurisdiction: per Zaleha Zahari JCA in Menteri Besar Negeri Pahang Darul Makmur v. Seruan Gemilang Makmur Sdn Bhd [2010] 5 CLJ 123 at p 135 and citing Mersing Omnibus Co. In the latter case, Eusoffe Abdoolcader FJ in delivering the judgment of the Federal Court that leave should not have been granted to the appellant to apply for certiorari and that the High Court Judge had no jurisdiction to do so said at p 267: “At the outset of the hearing of this appeal we raised the question of the appellant being out of time in his application for leave for certiorari in the light of the provisions of O. 53 r. 1A of the Rules of the High Court 1980, the relevant part of which specifically provides that leave shall not be granted to apply for an order of certiorari unless the application for leave is made within six weeks after the date of the proceeding or the delay is accounted for to the satisfaction of the Court or Judge to whom the application for leave is made. As the decision of the Minister sought to be impugned is dated 23 November 1981, the period of six weeks would, on a computation under O. 3 & 2(2) of the Rules of the High Court, expire on 5 January 1982, and as the application for leave was made on 9 January 1982 the appellant was clearly out of time and no extension of time was sought nor the delay accounted for to the satisfaction of the 37 learned Judge who heard the application as required by the rule. Apparently this point completely escaped all parties involved, as a result perhaps of an affliction of incorrigible somnolence that seems to pervade the perception of the law and practice of the profession from time to time. We took the point ourselves as it clearly goes to the jurisdiction of the Court from which leave to apply for certiorari was sought as O. 53 r. 1(1) stipulates that no application for an order of certiorari shall be made unless leave therefor has been granted and r. 1A which we have already adverted to enacts that leave shall not be granted except in accordance with its specific provisions.” (emphasis added). [29] In her AIS affirmed on 23.9.2016, the Applicant had averred, inter alia, as follows: “2. Affidavit sokongan saya ini difailkan bagi menyokong Permohonan Semakan Kehakiman dan Pernyataan Menurut Aturan 53 Kaedah 3(2) Kaedah-Kaedah Mahkamah 2012 yang difailkan di Mahkamah ini. 4. Saya akan merujuk kepada keputusan-keputusan Pengarah Hospital Serdang yang telah disampaikan melalui surat pada tarikh-tarikh berikut: 38 Keputusan Pertama – Surat bertarikh 18.1.2013 Pada 18.1.2013, Responden-responden dan/atau pekerja, petugas dan kakitangannya telah menuntut secara tidak sah daripada saya untuk membayar sebanyak RM5987.74 dan telah menolak sebanyak RM3520 daripada gaji saya atas alasan saya telah mengambil cuti rehat dan cuti sakit yang melebihi 28 hari berturut-turut. Sesalinan surat bertarikh 18.1.2013 daripada Responden-Responden tersebut kini ditunjukkan dan ditandakan sebagai Ekshibit WH-1. Keputusan Kedua – Surat bertarikh 18.3.2013 Pada 18.3.2013, Responden-Responden dan/atau pekerja, petugas dan kakitangannya telah mengarahkan untuk menghentikan gaji saya pada Mac 2013 atas alasan bahawa saya mengambil cuti sakit yang diberikan oleh hospital swasta untuk tempoh terlalu lama dan bukan daripada doktor atau hospital kerajaan. Penahanan gaji ini berlanjutan sehingga sekarang tetapi tidak dinyatakan dalam mana mana surat arahan atau dokumen. 39 Sesalinan surat bertarikh 18.3.2013 daripada Responden-Responden tersebut kini ditunjukkan dan ditandakan sebagai Ekshibit WH-2 4. Saya telah dinasihatkan oleh peguamcara saya dan sesungguhnya percaya bahawa surat-surat bertarikh 18.1.2013 dan 18.3.2013 tersebut yang telah dikeluarkan oleh Responden-Responden merupakan suatu keputusan dan/atau dapatan oleh Responden-Responden yang tidak munasabah, tidak sah dan tidak berpatutan.”. [30] Reading the aforesaid excerpt from the AIS, it is crystalline that the decision which the Applicant seeks to challenge, and for which leave was sought vide Enclosure 1 and supported by the Statements in Enclosure 2, and subsequently obtained on 8.2.2017, are the decisions as conveyed in the letters from Serdang Hospital dated 18.1.2013 (exhibit “WH-1”) and 18.3.2013 (exhibit “WH-2”). The Applicant’s case and any submissions made to advance the same must necessarily be restricted within the ambit of the decisions as conveyed in the two letters mentioned. 40 [31] Even though the Respondents have, in their AIR, replied to the Applicant’s averments in respect of the three matters being the subject of the Respondents’ preliminary objection, this conduct cannot, by any means, confer jurisdiction on the Court to review the decisions. This current scenario clearly comes within the ambit of the Mersing Omnibus Co. case where the Federal Court held at p 268 that: “In any event jurisdiction does not originate in the consent of the parties and cannot be established, where it is absent, by such consent or acquiescence [Federal Hotel Sdn. Bhd. v. National Union Of Hotel, Bar & Restaurant Workers [1983] CLJ (Rep) 50; [1983] 1 MLJ 175].”. [32] In the upshot, I allowed the Respondents’ preliminary objection for the reason that leave of the Court to review (i) the decision with respect to half-pay leave and no-pay leave; (ii) the delay in referring the Applicant to the Medical Board; and (iii) the decision of the Medical Board dated 25.11.2013 was not obtained beforehand and the Applicant is now out of time to do so, and no application was made to account for the delay to the satisfaction of the Court. 41 Relief (i): Order for mandamus in respect of arrears in salary in the sum of RM407,139.75 as at February 2016 and continuing - Overview of the parties’ submissions [33] In his submissions on behalf of the Applicant, Mr. Raam Kumar relied on the definitions of “cuti sakit” and “Sijil Sakit” in the G.O. Chapter C on “Cuti”; G.O. 17 and 18 under “Cuti Sakit” in the same Chapter; G.O. 14 under “Cuti Tanpa Gaji”; the definition of “emolumen” and regulation 2 in the Peraturan-Peraturan Pegawai Awam (Kelakuan Dan Tatatertib) 1993 or otherwise known as G.O. Chapter D in making out a case of wrongful withholding of the Applicant’s salary from March 2013 until November 2016 and continuing. [34] Learned counsel additionally prepared an Executive Summary in table form, as directed by the Court, to present further details such as the Applicant’s salary per year from 2013 until 2019 inclusive of the yearly increment; calculation on emoluments from 2013 to 2019; and entitlement to bonus and incentive from 2013 to 2019; and the amounts paid by the Applicant as BIPK refund and salary 42 deduction.The alleged total unpaid amount prayed by the Applicant as at September 2019 was summarised as follows: Total emoluments prayed RM1,056,864.63 Total emoluments paid RM 243,480.91 Total balance of unpaid emoluments RM 813,383.72 [35] The Respondents had filed the following extensive affidavits pertaining to the facts of the case and as rebuttal to the Applicant’s averments: (a) AIR (1) affirmed by Dr. Rohana Binti Johan, Director of Serdang Hospital on 31.5.2017 (Enclosure 9); (b) AIR (2) affirmed by Datuk Dr. Jeyaindran Tan Sri Dr. Sinnadurai, Deputy Director General of Health (Medicine) cum Chairman of the 3rd Medical Board on 23.5.2017 (Enclosure 8); (c) Afidavit Balasan (1) affirmed by Dr. Rohana Binti Johan on 17.11.2017 (Enclosure 12); 43 (d) Afidavit Balasan (2) affirmed by Datuk Dr. Jeyaindran on 20.11.2017 (Enclosure 13); (e) AIR (3) and Corrective Affidavit (1) affirmed by Dr. Rohana Binti Johan on 4.4.2018 and 20.4.2018, respectively (Enclosures 20 and 24); (f) AIR (4) and Corrective Affidavit (2) affirmed by Raihana Binti Rohani, the accountant attached to Serdang Hospital on 4.4.2018 and 20.4.2018, respectively (Enclosures 21, 22 and 25); (g) Additional Affidavit affirmed by Dr. Rohana Binti Johan on 9.8.2019 (Enclosure 53); and (h) Additional Affidavit (2) affirmed by Siti Nurislam Binti Mohd Nor, Deputy Director (Management), Cheras Rehabilitation Hospital on 9.8.2019 (Enclosure 54). 44 [36] The FC similarly mapped out the gist of the Respondents’ submissions by way of an Executive Summary which includes a bird’s eye view of the law on medical leave and payment of emoluments with reference to the G.O. and applicable provisions in the Pekeliling Perkhidmatan (‘PP’) and Surat Pekeliling Perkhidmatan (‘SPP’); and issues concerning the refund of BIPK and deduction of salary; the Applicant’s entitlement to emoluments from 2013 to date; and the emoluments paid to the Applicant and subject to recovery. [37] The crux of the Respondents’ submissions can be summarised as follows: (a) based on the legal principles as enunciated in Koon Hoi Chow v. Pretam Singh [1972] 1 MLJ 180 and MP Jain’s Administrative Law of Malaysia and Singapore, Updated by Dr Damien J Cremean, Fourth Edition, Lexis Nexis, the Applicant is not entitled to the amount prayed as emoluments due to non-fulfilment of paras 44(1)(a) and (b) SRA 1950 whereby – 45 (i) the Applicant does not have a legal right to be paid emoluments amounting to RM407,139.75 as at February 2016 and counting. As a public officer, the Applicant is bound by, amongst others, the G.O. and service circulars issued by the Government, and in this case, the payment of emoluments to the Applicant is subject to the G.O. Chapter C governing “Cuti”; and (ii) the Respondents do not have a legal duty to pay the said amount to the Applicant; (b) as regards the Applicant’s entitlement to emoluments for each year as claimed: (i) 2013 In her AIS and exhibit “WH-3”, the Applicant averred that in 2013, she had submitted medical certificates from private hospitals/ clinics for a total of 364 days which were not endorsed by a Government Medical Officer whereas according to G.O. 15, G.O. Chapter C and subpara 3(a) 46 “Pekeliling Perkhidmatan Bilangan 2 Tahun 2006: Pindaan Peraturan Berkaitan Penerimaan Sijil Sakit Swasta Untuk Tujuan Kemudahan Cuti Sakit” dated 27.4.2006 (‘PP 2/2006’), the Applicant has to obtain the endorsement by a Government Medical Officer for such medical certificates after the 15th day. The said G.O. 15 which appears under Part III on “Cuti-Cuti Atas Sebab Perubatan” states: “15. Sijil Sakit perlu untuk mendapat cuti sakit Kemudahan cuti sakit boleh diluluskan dengan syarat-syarat seperti berikut: (a) bagi pegawai yang menerima rawatan sebagai pesakit luar di hospital atau klinik swasta, sijil sakit yang dikeluarkan oleh doktor swasta tanpa sokongan oleh Pegawai Perubatan Kerajaan boleh diterima jika ia memberi jumlah cuti sakit yang tidak melebihi 15 hari dalam sesuatu tahun kalendar.”, 47 whilst subpara 3(a) PP 2/2006 provides as follows: “3. Kemudahan cuti sakit boleh diluluskan dengan syarat-syarat seperti berikut: a. bagi pegawai yang menerima rawatan sebagai pesakit luar di hospital atau klinik swasta, sijil sakit yang dikeluarkan oleh doktor swasta tanpa sokongan oleh Pegawai Perubatan Kerajaan boleh diterima jika ia memberi jumlah cuti sakit yang tidak melebihi 15 hari dalam sesuatu tahun kalendar; …”. Therefore, the FC posited that, taking into account para 10 of “Surat Pekeliling Perkhidmatan Bilangan 17 Tahun 2007 – Bayaran Insentif Perkhidmatan Kritikal” dated 11.12.2007 (‘SPP17/2007’) and paras 8 and 9 of “Pekeliling Perkhidmatan Bilangan 12 Tahun 2012 – Imbuhan Tahunan Dan Bayaran Khas Prestasi Kali Kedua Tahun 2012” (‘PP12/2012’), in actuality there is an excess payment of emoluments made to the Applicant amounting to RM120,875.25 as shown below: 48 Paras 8 and 9 PP12/2012 are set out below for convenience of reference: “8. Imbuhan Tahunan dan Bayaran Khas Prestasi kali kedua ini dibayar kepada pegawai yang berkhidmat dalam tahun 2012 tertakluk kepada syarat bahawa pegawai telah berkhidmat sekurang-kurangnya 30 hari berturut-turut dalam tempoh 1 Januari hingga 31 Disember 2012. 9. Imbuhan Tahunan dan Bayaran Khas Prestasi Kali Kedua ini akan dibayar setengah bulan gaji atau kadar minimum RM500.00 bersekali dengan gaji bulan Disember 2012 manakala setengan bulan lagi atau kadar minimum RM500.00 bersekali dengan gaji bulan Januari 2013. Pembayaran adalah berdasarkan AMOUNT Prayed RM126,491.21 Paid RM125,691.09 Legally Entitled RM 4,815.14 Excess Payment RM120,875.25 49 gaji bulan Disember 2012 atau gaji akhir yang diterima pada tahun 2012.”. (ii) 2014 For the entire year, the Applicant had submitted medical certificates from private hospitals/ clinics that had been endorsed by a Government Medical Officer for a total of 365 days. However, in accordance with G.O. 15(c) and 17(a) G.O. Chapter C, the Head of Department and the Secretary General of Ministry of Health had respectively approved – the 1st 90 days i.e., January 2014 until March 2014 by way of letter dated 18.11.2015 (exhibit “DRJ-13” Enclosure 9); and the 2nd 90 days i.e., April 2014 until June 2014 by way of letter dated 19.5.2016 (exhibit “DRJ-14” Enclosure 9). The said G.O. 15(c) and 17(a) provide that: 50 “15. Sijil Sakit perlu untuk mendapat cuti sakit Kemudahan cuti sakit boleh diluluskan dengan syarat-syarat seperti berikut: … (c) jumlah cuti sakit sama ada berasaskan sijil sakit swasta atau sijil sakit kerajaan yang boleh diberikan adalah tidak melebihi 180 hari dalam sesuatu tahun kalendar, di mana 90 hari yang pertama boleh diluluskan oleh Ketua Setiausaha.” “17. (a) Maksimum cuti sakit Seseorang Ketua Jabatan boleh meluluskan cuti sakit tidak melebihi 90 hari pada satu-satu masa atau 90 hari dalam satu-satu tahun (Januari hingga Disember). Sebarang cuti yang diperlukan lebih daripada ini hendaklah diluluskan oleh Kuasa Tertentu yang boleh 51 memberi tidak lebih daripada 90 hari lagi cuti sakit.”. Thereafter, since the Applicant continued to hand in medical certificates from private hospitals/ clinics, she is legally entitled to utilise 17 days of her annual leave as provided under G.O. 17(b) which reads – “(b) Boleh guna cuti rehat Sekiranya seseorang pegawai itu masih disahkan tidak sihat setelah menghabiskan cuti-cuti di (a), maka Ketua Jabatannya boleh memberi dia apa-apa cuti rehat yang masih ada lagi untuknya.”. Taking into account public holidays and weekends, the total amount of leave that the Applicant is entitled to is 24 days. Furthermore, since the 1st Medical Board was established on 25.6.2013, the Applicant is entitled to further medical 52 leave of 90 days by virtue of G.O. 22(a), G.O. Chapter C and the approval that was given by the Secretary General of Ministry of Health by way of letter dated 19.5.2016 (exhibit “DRJ-14” Enclosure 9). The aforesaid G.O. 22(a) is in the following terms: “22. (a) Masa berehat tidak lebih 3 bulan Seseorang pegawai yang telah diperakukan oleh sebuah Lembaga Perubatan sebagai tidak sihat untuk bertugas tetapi ada harapan untuk sihat semula bagi perkhidmatan selanjutnya, dan pada pandangan Lembaga tersebut ia memerlukan masa berehat, maka Lembaga bolehlah mengesyorkan ia diberi satu tempoh bercuti yang tidak melebihi 3 bulan Untuk tujuan ini Ketua Jabatan bolehlah memberi pegawai itu apa-apa cuti sakit mengikut Perintah Am 17 atau cuti rehat yang ia masih ada lagi. Sekiranya semua cuti-cuti ini telah habis, ia boleh diberi cuti separuh gaji mengikut Perintah Am 13 ataupun cuti tanpa gaji mengikut Perintah Am 14 jika cuti separuh gajinya telah habis. 53 Selepas cuti sakit bergaji penuh selama 180 hari dan juga cuti rehat yang berkelayakan ketika itu telah digunakan, anggota yang masih tidak sihat untuk bertugas semula boleh diberikan Cuti Separuh Gaji sehingga 90 hari dengan perakuan Lembaga Perubatan. Sementara menunggu Laporan Lembaga Perubatan, sijil sakit boleh diterima bagi tujuan Cuti Separuh Gaji tersebut. Anggota hendaklah diberi Cuti Tanpa Gaji jika tidak mengemukakan sijil sakit bagi tempoh menunggu Laporan Lembaga Perubatan berkenaan.”. However, there was an error in law when approval for a further 78 days was given vide letter from the Ministry of Health dated 19.5.2016 (exhibit “DRJ-14” Enclosure 9), purportedly in reliance of G.O. 22(b), G.O. Chapter C, as the Medical Board had not certified the Applicant to be ill with a chance of recovery as stipulated under the said G.O.. 54 The upshot is that there is, yet again, an excess payment of emoluments made to the Applicant amounting to RM10,324.34 as detailed below: Prayed RM122,013.36 Paid RM121,608.66 Legally Entitled RM111,284.34 Excess Payment RM 10,324.32 (iii) 2015 The position for 2015 is akin to 2014 because the Applicant had submitted medical certificates from private hospitals/ clinics that had been endorsed by a Government Medical Officer for a total of 365 days. By the same exhibits “DRJ-13” and “DRJ-14”, the Head of Department and the Secretary General of Ministry of Health had respectively approved – 55 the 1st 90 days i.e., January 2015 until March 2015; and the 2nd 90 days i.e., April 2015 until June 2015. Thereafter, the Applicant is entitled to a total of 27 days of annual leave. Even though a Medical Board had been established on 20.4.2015, pursuant to G.O. 22(a), G.O. Chapter C, the Applicant’s entitlement to leave with half pay is still subject to the approval of the Secretary General of Ministry of Health, which to date, no decision has been given. In summary, there is an excess payment of emoluments made to the Applicant for a relatively lower figure of RM437.32 as shown in the following calculation: Prayed RM122,013.36 Paid RM 93,135.40 Legally Entitled RM 92,698.08 Excess Payment RM 437.32 56 (iv) 2016 to 2019 The Applicant is not legally entitled to any payment of emoluments from January 2016 onwards since – there is no duty on the Respondents under the law to pay the Applicant who had been on prolonged leave for more than two years; there are no provisions in G.O. Chapter C that could cater for the payment of emoluments to the Applicant from year 2016 onwards in the circumstances of her case; and (C) under G.O. 22(d), G.O. Chapter C, the Applicant is entitled to salary only when she is on medical leave for a period of up to two years and thereafter she may be retired upon recommendation of the Medical Board. 57 The Applicant’s benefit to the payment of salary had been utilised in 2014 and 2015 when she had been given 180 days medical leave in accordance with G.O. 17(a), G.O. Chapter C; all her annual leave had been exhausted in in accordance with G.O. 17(b); and pursuant to the establishment of the 1st Medical Board, the Applicant had been given leave with half pay (in 2014 only) pursuant to G.O. 22(a). Furthermore, the Applicant’s own conduct resulted in the Medical Board being unable to assess whether she is able to work or otherwise. The 3rd Medical Board had examined the Applicant on 8.6.2015 and recommended that she be re-examined for neuropathic pain by the Head of the Rehabilitation Department, Cheras Hospital. Upon receiving the Medical Report of the said Head of Department on 27.1.2016 (exhibits “DJDS-4” and “DJDS-5” Enclosure 8), the Medical Board which convened on 4.2.2016 required the Applicant to undergo assessment for fitness to work by the neuropsychiatrist 58 and clinical psychologist to determine her psychological health (exhibit “DJDS-6”). However, the Applicant refused to attend the appointment for the said purpose even though she was aware of the importance of the assessment (exhibit “DJDS-7”). [38] The FC additionally cited the case of Koon Hoi Chow (supra) to support her argument that a mandamus order cannot issue when “the right is doubtful, or is a qualified one or where it depends upon an issue of fact to be determined by the respondent” since the Respondents now have to determine whether the Applicant had been studying during the period when she was on medical leave. The facts surrounding this issue are disputed and would impact on whether the Applicant is legally entitled to the emoluments paid in 2014 and 2015 in view of G.O. 17(c) G.O. Chapter C which provides that “Adalah menjadi syarat bahawa semua cuti sakit hendaklah dihabiskan di hospital atau di rumah pegawai melainkan jikalau ditetapkan oleh seseorang pegawai perubatan sebaliknya.”. 59 - Analysis and decision of the Court [39] The power of the Court to order public servants and others to do certain specific acts is specifically provided in sub-s 44(1) SRA 1950 which reads: “44. (1) A Judge may make an order requiring any specific act to be done or forborne, by any person holding a public office, whether of a permanent or a temporary nature, or by any corporation or any court subordinate to the High Court: Provided that— (a) an application for such an order be made by some person whose property, franchise, or personal right would be injured by the forbearing or doing, as the case may be, of the said specific act; (b) such doing or forbearing is, under any law for the time being in force, clearly incumbent on the person or court in his or its public character, or on the corporation in its corporate character; 60 (c) in the opinion of the Judge the doing or forbearing is consonant to right and justice; (d) the applicant has no other specific and adequate legal remedy; and (e) the remedy given by the order applied for will be complete.”. [40] In Koon Hoi Chow (supra), Sharma J at pp 181 - 182 held: “Five conditions are laid down in section 44 and these conditions are the five provisos contained in the section which the applicant must satisfy. They are cumulative and all of them must be fulfilled. … There are four prerequisites essential to the issue of an order under section 44 or of a mandamus:- (1) Whether the applicant has a clear and specific legal right to the relief sought; (2) Whether there is a duty imposed by law on the respondent; 61 (3) Whether such duty is of an imperative ministerial character involving no judgment or discretion on the part of the respondent; and (4) Whether the applicant has any remedy, other than by way of mandamus, for the enforcement of the right which has been denied to him. These are the questions, but only some of the questions, which are necessary to be answered in every application for mandamus. The applicant must show not only that he has a legal right to have the act performed but that the right is so clear and well defined as to be free from any reasonable controversy. The order cannot issue when the right is doubtful, or is a qualified one or where it depends upon an issue of fact to be determined by the respondent.” (emphasis added). [41] In MP Jain’s Administrative Law of Malaysia and Singapore (supra) at pp 614 - 615, the learned author explicated that: “The order of mandamus is a command issued by a court requiring an authority to perform a public duty imposed upon 62 it by law. For example, when an authority omits to decide a matter which it must decide under law, mandamus can be issued directing it to decide it. … … Mandamus, however, can be granted only when: (a) a legal duty is imposed on an authority, and it does not perform it; and (b) the applicant has a legal right to compel the performance of the duty. Mandamus is thus a very wide remedy which is available against a public officer to see that a duty is performed or carried out, in accordance with law. Enforceable by mandamus is a duty of a public nature, the performance of which is imperative and not optional or discretionary. Thus, if an officer has power, rather than a duty, and does not use such power, mandamus is not issued to compel its exercise. But mandamus will be issued if the officer refuses to exercise the power for the wrong reasons. For example, the government makes a rule assuming power to grant some allowance to its employees. Mandamus cannot be issued 63 directing the government to sanction the allowance to its employees, for the government has merely assumed the power to do so; no duty has been imposed on it to grant the allowance, nor has any right been conferred on the employees to get the allowance.”. [42] The apex court had on two occasions expounded the relationship between a public servant/ officer and the government. Firstly, in Government of Malaysia v Rosalind Oh Lee Pek Inn [1973] 1 MLJ 222, Suffian FJ held as follows: “I should add that the contract between a public servant such as the plaintiff and the government is of a very special kind, for as was stated by Ramaswami J. at page 1984 when delivering the judgment of the Indian Supreme Court in Roshan Lal v Union of India(3) “It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by Government … The hall-mark of status is the attachment to a legal relationship of 64 rights and duties imposed by the public law and not by mere agreement of the parties.” (emphasis added). [43] Secondly, the Federal Court in Pengarah Pelajaran, Wilayah Persekutuan v Loot Ting Yee [1982] 1 MLJ 68 at p 69 expounded that the law relating to civil service in Malaysia “… is based upon a twin principle that every employee holds office during pleasure of the Yang di-Pertuan Agong and that the qualifications for appointment and conditions of service are regulated by him, in addition and subject to any law on the same subject matters having been made by Parliament. So far Parliament has not yet made any law on the subject of civil service except the Pensions Ordinance and Parliamentary Service Act (No.12 of 1963). These two Acts are irrelevant in the present appeal. The Constitution prescribes no limit on the scope and extent of the pleasure of the Yang di-Pertuan Agong but when power to dismiss an employee or to reduce him in rank is to be exercised, the Constitution prescribes procedural restrictions as to the manner and by whom this power is exercisable. Thus the pleasure of the Yang di-Pertuan Agong not only applies 65 to tenure of office of an employee but also extends to a multitude of subject matters, such as appointments, promotions, transfers, salaries, leaves and other benefits. These are all being regulated by civil service rules known as Perintah-Perintah Am made by the Yang di-Pertuan Agong under Clause 2 and Article 132 and also various circulars, instructions issued from time to time by appropriate authorities in the Government.” (emphasis added). [44] As alluded to earlier, I had allowed the Respondents’ preliminary objection relating to the Applicant’s submissions pertaining to the decision with respect to half-pay leave and no-pay leave. In effect, the Applicant’s case must be restricted within the ambit of the decisions as conveyed in the letters from Serdang Hospital dated 18.1.2013 (exhibit “WH-1” in the Applicant’s AIS) and dated 18.3.2013 (exhibit “WH-2”). 66 Exhibit “WH-1”: Repayment of BIPK [45] For ease of reference, the main contents of this exhibit is re-produced below: “PERMOHONAN BAYARAN BALIK BAYARAN INSENTIF PERKHIDMATAN KRITIKAL (BIPK) … 2. Untuk makluman, puan perlu membayar Bayaran Insentif Perkhidmatan Kritikal (BIPK) kerana telah mengambil cuti rehat dan cuti sakit yang melebihi 28 hari berturut-turut mulai 10.01.2011 hingga 11.03.2011, 23.07.2011 hingga 18.09.2011 dan 03.01.2012 hingga 30.09.2012 sebanyak RM 9667.74. 3. Selain itu, pihak kami telah membuat pergerakan gaji tahunan puan mulai 1 Januari 2012 dan tunggakan gaji puan sebanyak RM 3520.00 akan ditolak dengan amaun yang perlu dibayar oleh puan. Pihak kami juga telah membuat pelarasan Imbuhan Tahunan dan Bayaran Khas Prestasi Tahun 2012 dengan perbezaan yang perlu dibayar kepada puan sebanyak RM 160.00. 67 4. Sehubungan itu setelah membuat kiraan yang perlu dibayar, puan hendaklah membayar sebanyak RM 5987.74. Bersama-sama ini disertakan Salinan pengiraan balik dan dokumen-dokumen yang berkaitan. …”. [46] The Applicant had challenged the validity of the Respondents’ decision as conveyed in this exhibit. Having carefully scrutinised the decision in light of the averments in the Affidavits, the exhibits produced (particularly the Respondents’ AIR (1) and (4) in Enclosures 9 and 21) and written submissions by learned counsels, it is my finding that the Respondents were justified in seeking re-payment of the said sum based on paras 10 and 14 SPP17/2007 on “Bayaran Insentif Perkhidmatan Kritikal” and Arahan Perbendaharaan Bab A – Bab C 327(a) which state as follows: “Syarat Pemberian Bayaran Insentif Perkhidmatan Kritikal 10. Pemberian Bayaran Insentif Perkhidmatan Kritikal hendaklah diberhentikan kepada pegawai apabila berada dalam keadaan seperti berikut: 68 (a) bayaran diberhentikan mengikut tempoh cuti bagi pegawai yang mengambil: (i) … … (vi) cuti rehat yang melebihi 28 hari berturut-turut; (vii) cuti haji yang melebihi 28 hari berturut-turut; (viii) cuti sakit yang melebihi 28 hari berturut-turut; (ix) cuti bersalin; dan (x) kombinasi mana-mana jenis cuti di perenggan (vi), (vii), (viii) dan (ix) di atas yang melebihi 28 hari berturut-turut. …” “Kadar Bayaran Insentif Perkhidmatan Kritikal 14. Kadar Bayaran Insentif Perkhidmatan Kritikal adalah seperti berikut: (a) 5% daripada gaji pokok sebulan untuk Kumpulan Pengurusan dan Profesional kecuali bagi Pegawai Perubatan, Pegawai Pergigian, Pegawai Farmasi, Pensyarah Perubatan, Pensyarah Pergigian, Pensyarah Universiti (farmasi) dan Pensyarah UiTM (farmasi) adalah RM750 sebulan tanpa mengikut gred; …”. 69 “Kehilangan Kerana Pembayaran Lebih Atau Pembayaran Tanpa Kuasa “327. (a) Apabila suatu pembayaran lebih atau pembayaran yang salah dibuat, pembayaran balik hendaklah biasanya didapatkan balik daripada penerima pembayaran. Jika pembayaran balik sepenuhnya didapatkan balik, laporan tidak perlu dihantar kepada Ketua Setiausaha Perbendaharaan atau Pihak Berkuasa Kewangan Negeri melainkan jika Pegawai Pengawal berpendapat bahawa suatu kes tindakan tatatertib hendaklah diambil ke atas seseorang pegawai kerana kecuaian berkaitan dengan pembayaran lebih itu.”. [47] Applying the above mentioned provisions to the facts in this case, it is indisputable that the Applicant is not entitled to BIPK as she had been on continuous annual leave and/ or medical leave for more than 28 days. Hence, the Respondents are empowered by virtue of Arahan Perbendaharaan 327(a) to request for a refund of BIPK that the Applicant was not entitled to. 70 [48] In terms of the computation in respect of the refund of BIPK and deduction of salary, I find that the itemisation/ details as affirmed in the Respondents’ Affidavits and reiterated in their submissions are accurate. The itemisation is as follows: Tahun Butiran Amaun Terlebih/ Terkurang Bayar (RM) 2011 2012 Jumlah yang ditolak daripada tunggakan pergerakan gaji tahunan - - 3,520.00 BIPK Terlebih Bayar 2,966.13 6,701.61 Jumlah yang ditolak daripada pelarasan bayaran bonus - Amaun Terlebih Bayar bagi tahun 2011 dan 2012 RM5,987.74 Jumlah yang dibayar oleh pemohon di Kaunter Hasil pada 1.2.2013 RM5,987.74 Bayaran balik kepada pemohon melalui Voucer No. B7682 bertarikh 8.8.2017 RM1,548.39 71 [49] The Respondents had re-paid the sum of RM1,548.39 to the Applicant on 8.8.2017 (exhibit “RR-14” in the Respondents’ AIR (4) Enclosure 22) following further checks which confirmed that the Applicant was not absent for a continuous period of 28 days between 10.1.2011 to 11.3.2011. [50] In the same vein, the Applicant’s claim for RM3,520.00 being the arrears of salary for 2012, which was deducted by the Respondents towards the total overpaid BIPK amounting to RM9,667.74, is without merit. Exhibit “WH-2”: Withholding of March 2013 salary [51] This exhibit being a letter from Serdang Hospital to AGD reads as follows: “MEMOHON PENAHANAN GAJI UNTUK BULAN MAC 2013, WAN HIMRATUL AZNA BINTI WAN HARUN PEGAWAI PERUBATAN PAKAR PATOLOGI GRED UD54 - HOSPITAL SERDANG. 72 Adalah saya dengan hormatnya diarah merujuk kepada perkara di atas memohon jasabaik pihak tuan / puan menahan gaji WAN HIMRATUL AZNA BINTI WAN HARUN untuk bulan MAC 2013 kerana pegawai dalam cuti sakit swasta yang panjang berkuatkuasa pada Mac 2013 hingga sekarang. …”. [52] In para 9.7 of the Respondent’s AIR (4), it was explained that the Applicant’s salary for March 2013 was paid but following the instruction vide letter dated 18.3.2013, the amount of RM4,477.85, which is equivalent to the Applicant’s take home salary, was withheld in view of the lengthy application for medical leave submitted by way of the medical certificates issued by private hospitals/ clinics. The said sum was re-paid to the Applicant on 8.8.2017 (exhibit “RR-14” in the Respondents’ AIR (4) Enclosure 22). Hence, the Applicant’s allegation that the Respondents’ initial decision is unreasonable or invalid is no longer a live issue. [53] As regards the application for a mandamus order that the Respondents pay back wages from April 2013 to date, the difference 73 in the calculation submitted by the Applicant and the Respondents is that the former can be described as a “clean” mathematical computation without factoring in the G.O./ regulations governing the terms of the Applicant’s employment with the 4th Respondent as an officer in the public service, especially in relation to the subject matter of sick leave and entitlement to emoluments. [54] The Respondents have provided detailed explanation supported by documentary evidence in their Affidavits in respect of the amounts paid and the Applicant’s legal entitlement to such salaries or otherwise according to the relevant G.O. and Government Circulars. I have closely scrutinised each of the item involved and in my view, the Respondents have correctly applied the various provisions in the G.O. and circulars in determining the Applicant’s legal entitlement to the emoluments and are justified in not making payments on the occasions when the Applicant expected to the contrary. [55] Futhermore, I am in agreement with the submissions by the FC on two aspects, namely – 74 (a) the 1st Respondent’s action of accepting the Medical Certificate issued by a private hospital and unendorsed by a Government Medical Officer after the 15th day does not automatically mean that the Applicant is eligible to the emoluments. This is due to the fact that the Applicant’s relationship with the Respondents is not determined by the consent of parties, but rather by public law through statutory provisions and government circulars; (b) there is no duty under the law that requires the Respondents to instruct the Applicant of the need to endorse private medical certificates which have exceeded 15 days; and (c) as a public officer, the Applicant cannot claim ignorance of the GO. Article 132(2) of the Federal Constitution clearly provides that “Except as otherwise expressly provided by this Constitution, the qualifications for appointment and conditions of service of persons in the public services other than those mentioned in paragraph (g) of Clause (1) may be regulated by federal law and, subject to the provisions of any such law, 75 by the Yang di-Pertuan Agong; ....”. The same goes for circulars issued by the Public Service Department and Treasury from time to time. [56] In so far as the issue of the Applicant having pursued doctoral studies while on medical leave is concerned, Dr. Rohana Binti Johan had affirmed in the Applicant’s AIR (3) (Enclosure 20) that: “15.1 Saya sesungguhnya menyatakan bahawa saya telah dimaklumkan oleh Pemohon bahawa Pemohon – 15.1 telah menyambung penggajian untuk Ijazah Kedoktoran (“PHD”) di Universiti Putra Malaysia dalam bidang Ekonomi Perniagaan (“Business Economics”) semasa Pemohon bercuti sakit; 15.2 walaupun apa pun pengiraan yang dinyatakan di perenggan 7 hingga perenggan 13 Afidavit ini berhubung dengan emolumen yang layak diterima oleh Pemohon, Pemohon tidak berhak untuk sebarang emolumen dalam tempoh pengajian Pemohon; dan 76 15.3 pengiraan lebihan bayaran yang perlu dibayar balik perlu dibuat semula berdasarkan kepada tempoh Pemohon menyambung penggajian”. [57] The Applicant’s response to the above averment is to deny the same (see para 5 in her Afidavit Balasan (3) Enclosure 28). [58] The Respondents had also produced a letter dated 26.1.2015 from the Pathology Department, Kuala Lumpur Hospital to the 1st Respondent (exhibit “DRJ-19” Enclosure 9) enclosing the details of five pathologists who had interviewed the Applicant and prepared a “Rumusan Maklumat” which included a statement that: “o) Pegawai ini menyatakan bahawa beliau layak dan mampu untuk melakukan tugas-tugas pengurusan/ perancangan berdasarkan faktor-faktor berikut: i. Beliau mempunyai sarjana dalam bidang pentadbiran (MBA) ii. Pada masa ini beliau sedang mengikuti program PhD di UPM dalam bidang Business economics.”. 77 [59] In fact, the Applicant herself in a letter dated 15.10.2015 to the 2nd Respondent (exhibit “WH-37” Enclosure 11) had admitted that: “f) saya tidak dapat bekerja dalam waktu rasmi seseorang penjawat awam. Apabila terlalu mengantuk dan ‘drowsy” kerana kesan sampingan ubat penahan sakit, saya perlu baring dan tidur pada bila bila masa tanpa mengikut waktu rehat rasmi penjawat awam. Saya mengantuk sepanjang hari dan kurang mampu menumpukan perhatian kepada sesuatu; sebagai contoh pihak universiti UPM telah menamatkan pengajian Doktor Falsafah saya kerana saya tidak mampu melakukan kerja-kerja akademik mengikut kehendak program PhD pada masa sekarang.” (emphasis added). [60] Based on the above averments and documentary evidence, I agree with the Respondents that they are now required to carry out investigations as to whether the Applicant did pursue doctoral studies between 2013 to 2015 as this would have repercussions on the emoluments that have been paid to her for that duration of time. 78 [61] Following from the above analysis, it is my considered view that the Applicant has not established a clear and specific legal right to relief (i) in Enclosure 7 and that there is a duty imposed by law on the Respondents to pay the emoluments as sought. [62] The next section of the judgment is dedicated to the part of the Applicant’s relief for a mandamus order that the Respondents and/ or each one of them pay gratuities and pension to the Applicant; or alternatively, a declaration by this Court that the Applicant is not fit to continue her employment and should be retired on the ground of her current health condition and physical problems. To my mind, the logical order in which to approach the issues would be to start with the alternative prayer for a declaration and followed by an examination as to whether the Applicant is entitled to a mandamus order as sought. 79 (C) Relief (iv): A declaration that the Applicant should be retired on medical grounds - The parties’ submissions [63] The Applicant submitted that the power of the Court to make a declaration is unlimited except only as to how the Court wishes to exercise the discretion. The cases of Ladang Tai Tak (KT) Sdn Bhd v Suppiah a/l Andy Thavar & Ors [1999] 5 MLJ 257 and Development & Commercial Bank Bhd v Land Administrator, Wilayah Persekutuan & Anor [1991] 2 MLJ 180 were cited to support the submission. [64] In para 62 of the said Submission, learned counsel framed his argument in this manner: “Dan secara alternatifnya jika Mahkamah membenarkan permohonan Pemohon ini, dan Lembaha Perubatan Ketiga setelah diarahkan oleh Mahkamah Yang Mulia ini untuk memberikan keputusan dan Lembaga Perubatan memutuskan untuk membersarakan Pemohon yang mana jika ianya dikira dari tahun 2016, maka Responden- 80 Responden perlu membayar segala bentuk gratituti dan/atau pencen dan/atau apa-apa bayaran yang layak diterima oleh seorang Pegawai yang dibersarakan atas masalah kesihatan.”. [65] Although the decision of the 4th Medical Board has been obtained at the time of hearing of this application whereby the Medical Board concluded that the Applicant can return to do non-clinical work, the Applicant nevertheless pursued relief (iv). [66] However, the Respondents countered, with reference to a textbook on Declaratory Orders, 2nd Edition by P.W. Young as cited by Abdul Hamid C.J. (Malaya) in Karpal Singh v. Sultan of Selangor [1988] 1 M.L.J. 64 at p 66, that there are conditions that must be fulfilled by the Applicant before she is entitled to declaratory orders, namely that – (a) there must exist a controversy between the parties; (b) the proceedings must involve a “right”; 81 (c) the proceedings must be brought by a person who has a proper or tangible interest in obtaining the order; (d) the controversy must be subject to the jurisdiction of the courts; and (e) it must not be merely of academic interest, hypothetical or one whose resolution would be of no practical utility. [67] The FC placed emphasis on the fact that in the instant case, the declaratory order sought by the Applicant does not involve a right but a factual determination whereby the question as to the Applicant’s fitness to continue her employment or otherwise due to her current health conditions and physical problems is a matter to be decided by the Medical Board pursuant to the powers conferred under G.O. and 20 of G.O. Chapter F 1974 on “Perubatan”. [68] It was contended that based on the decisions by the Medical Board, this is not a case where a declaratory order should be granted since – 82 (a) the 2nd and 4th Medical Board had found that the Applicant is fit to work in a non-clinical role; (b) after the Applicant had continued to submit her private medical certificate leading to the setting up of the 3rd Medical Board, the 3rd Medical Board had been unable to come to a conclusion as to the Applicant’s health as the Applicant had refused to attend the examination arranged to determine her fitness; and (c) the Applicant’s own conduct raises doubt as, despite claiming of being in severe pain and producing numerous medical certificates, the Applicant had pursued her doctorate in Business Economic in University Putra Malaysia while on medical leave. 83 - Analysis and decision of the Court [69] Raja Azlan Shah Ag. L.P. in delivering the judgment of the Federal Court in Land Executive Committee of Federal Territory v Harper Gulfillan Bhd [1981] 1 MLJ 234 at p 236 articulated that: “The power must be exercised “sparingly”, with “great care and jealousy”. I said in Dato Menteri Othman bin Baginda & Anor. v. Dato Ombi Syed Alwi bin Syed Idrus that the power to grant a declaration should be exercised with a proper sense of responsibility and after a full realization that judicial pronouncements ought not to be issued unless there are circumstances that properly call for their making. Beyond that there is no legal inhibition to the grant of declaratory judgement. That is consistent with the attitude of the courts in this country. To some it may appear that justice is being denied by a timid and conservative approach. They are wrong. Consistency makes for certainty, and this court being at the centre of the legal system in this country, is responsible for the stability, the consistency and the predictability of the administration of law.”. [70] In the recent case of Superintendent of Land and Survey Department Kuching-Divisional Office & Anor v Ratnawati bt Hasbi Mohamad 84 Suleiman [2020] 2 MLJ 553, the Federal Court referred to the above mentioned judgment in these words: “[149] In fact, the Federal Court in Land Executive Committee of Federal Territory v Syarikat Harper Gilfillan Berhad [1981] 1 MLJ 234; [1980] 1 LNS 150 whilst taking the line that the court had the power to grant declaration in order to prevent an injustice to the plaintiff added a warning note to the exercise of the power to grant a declaration that its use must not be carried too far. Instead the power to grant declaratory judgment in lieu of the prerogative orders or statutory relief must be exercised with caution, it must be exercised sparingly, with great care and jealousy with proper sense of responsibility and after a full realisation that judicial pronouncements ought not to be issued unless there were circumstances that properly called for their making.”. [71] Apart from the reference to P.W. Young’s textbook, the Court in Karpal Singh’s case additionally cited the case of Lim Cho Hock v. Government of the State of Perak & Ors. [1980] 2 M.L.J. 148 where it 85 was held that “the court’s power to make declaratory judgement is confined to matters justiciable in the Courts, and the binding declarations which it could make under Order 15 Rule 16 of the Rules of the High Court, 1980 are limited to legal or equitable rights and do not extend to moral, social or political matters.”. [72] G.O. 18 and 20, G.O. Chapter F regulate matters pertaining to the Medical Board, specifically the members and preparation of the report in the following terms: “III. LEMBAGA PERUBATAN 18. Ahli-ahli Lembaga Perubatan Apabila diterima permohonan-permohonan daripada mana-mana Ketua Jabatan atau Kuasa-Kuasa Tertentu seperti dalam Perintah-perintah Am Bab C atau Perintah Am 7 dalam bab ini supaya diperiksa kesihatan seseorag pegawai oleh Lembaga Perubatan, maka Ketua Jabatan Perubatan Negeri atau Ketua Yayasan Perubatan Persekutuan boleh melantik mana-mana pegawai perubatan yang difikirkannya sesuai untuk menjadi ahli-ahli Lembaga tersebut. Lazimnya sesebuah Lembaga hendaklah mengandungi tidak kurang daripada dua orang pegawai 86 perubatan dengan seorang daripada mereka, di mana boleh, hendaklah sebaik-baiknya ahli dalam jenis penyakit atau kecederaan yang dialami oleh pegawai tersebut. Dalam keadaan-keadaan teristimewa dan dengan persetujuan Ketua Jabatan atau Kuasa Tertentu yang memohon, Ketua Jabatan Perubatan Negeri atau Ketua Yayasan Perubatan Persekutuan boleh melantik seorang doctor prevet yang difikirkannya sesuai sebagai ahli Lembaga Perubatan. … 20. Laporan Lembaga Laporan mana-mana Lembaga Perubatan akan dikemukakan terus kepada Ketua Jabatan atau Kuasa Tertentu yang telah memohon dijalankan pemeriksaan tersebut. Laporan Lembaga Perubatan akan dikemukakan dalam bentuk seperti di Lampiran C.”. [73] It bears relevance to mention that an officer on full-time employment in the public service may be compulsorily retired under s 10 Act 227 in the following circumstance: “(5) The Yang di-Pertuan Agong, in the case of a federal officer or a local federal officer, or the State Authority, in the 87 case of a state officer, may require any officer to retire from the public service — (a) where the Director General or the State Secretary, as the case may be, is satisfied on medical evidence that the officer is incapable of discharging the duties of his office, by reason of infirmity of mind or body likely to be permanent;”. [74] The members of the Medical Board which were constituted to consider the Applicant’s case are as follows: (a) 1st Medical Board: Director of Kajang Hospital, an orthopaedic surgeon and a medical specialist; (b) 2nd Medical Board: Director of Sungai Buloh Hospital, Head of the Department of Surgery at Tengku Ampuan Rahimah Hospital in Klang and Head of the Department of Neurology at Kuala Lumpur Hospital; (c) 3rd Medical Board: Deputy Director General of Health (Medicine) of the Ministry of Health, Ketua Perkhidmatan Ortopedik Kebangsaan cum Head of the Department of 88 Orthopaedic at Tengku Ampuan Afzan Hospital at Kuantan, Head of the Department of Neurology at Kuala Lumpur Hospital, Head of the Department of Dermatology at Kuala Lumpur Hospital, Specialist Consultant in Ophthalmology at Selayang Hospital and Senior Consultant Psychiatrist at Hospital Permai Johor Bahru; and (d) 4th Medical Board: Ketua Perkhidmatan Perubatan Negeri cum Consultant Physician and Rheumatologist, Director of the Respiratory Medical Institute, Head of the Department of Psychiatry and Mental Health, Head of the Department of Dermatology at Kuala Lumpur Hospital, Ketua Perkhidmatan Neurologi Negeri Selangor at Sungai Buloh Hospital, Ketua Perkhidmatan Ortopedik Negeri Selangor at Tengku Ampuan Rahimah Hospital in Klang, Ketua Perkhidmatan Oftamologi for the Ministry of Health at Shah Alam Hospital and Head of the Department of Rehabilitation Medicine at Sungai Buloh Hospital. 89 [75] The Applicant did not challenge the establishment and/ or composition of the members of the Medical Board as being contrary to G.O. 18 as quoted above. The determination as to whether the Applicant “is incapable of discharging the duties of her office, by reason of infirmity of body likely to be permanent” in the professional and management scheme of service on grade UD54 involves an assessment of fact and is entrusted by law on the Medical Board, and not on the courts. The aforesaid list of the members of the Medical Board consist of those who hold senior positions in the government medical service and are truly specialists in their respective fields of expertise. Surely, there would be no better group of medical specialists to decide whether the Applicant is capable of discharging her duties or otherwise than the ones who have been appointed to serve on the four Medical Boards. [76] Based on the decision of the 4th Medical Board on 9.5.2019, the Applicant is recovering and is expected to be able to carry out her responsibilities based on the “Senarai Tugas”. Consequently, the Applicant was instructed to report for duty immediately vide letter dated 11.6.2019 issued by the Director of Serdang Hospital (exhibits 90 “WH-2” and “WH-3” in the Applicant’s Additional Affidavit, Enclosure 56). Then, by letter dated 14.6.2019 (exhibit “WH-4” Enclosure 56), Serdang Hospital acknowledged that the Applicant had reported for duty on 14.6.2019 and instructed her to resume work commencing 17.6.2019. [77] The Applicant has since written letters to the 1st Respondent dated 14.6.2019 (exhibit “WH-5” Enclosure 56); the Chief Secretary to the Government dated 2.7.2019 and 31.7.2019 (exhibits “WH-7” and “WH-9” Enclosure 56); and 2nd Respondent dated 5.8.2019 (exhibit “WH-10” Enclosure 56). A medical certificate issued by Gleneagles Kuala Lumpur for 92 days from 1.5.2019 to 31.7.2019 was enclosed with the letter to the 1st Respondent where, vide letter dated 9.7.2019, the 1st Respondent replied that the medical certificate “adalah tidak diterima” (exhibit “WH-8” Enclosure 56). [78] Exhibit “WH-10” also includes the transfer order issued by the Ministry of Health on 20.6.2019 which states: “ … 91 2. Dimaklumkan bahawa Mesyuarat Jawatankuasa Penempatan/Pertukaran Pegawai Perubatan Pakar (JKPP) Bil. 3 Tahun 2019 telah bersetuju supaya puan diarah bertukar ke Hospital Rehabilitasi, Cheras, Kuala Lumpur sebagai Pakar Perubatan Patologi (Histopatologi), Pegawai Perubatan pada gred dan mata gaji yang sama berkuat kuasa mulai 15 Julai 2019. … 6. Arahan pertukaran ini adalah susulan daripada syor Laporan Lembaga Perubatan bertarikh 9 Mei 2019 agar pegawai ditempatkan di fasiliti Kementerian Kesihatan Malaysia yang menyediakan rawatan rehabilitasi dan pada masa yang sama membolehkan pegawai menjalankan tugas-tugas non clinical seperti penyelidikan dan kualiti.”, as well as the Applicant’s letter dated 1.8.2019 to the Director of the Cheras Rehabilitation Hospital enclosing the medical certificates issued by KPJ Damansara Specialist Hospital for the periods from 16.7.2019 to 31.7.2019 and 1.8.2019 to 31.10.2019, which were rejected by the Director. 92 [79] It is thus apparent that despite the findings of the 4th Medical Board and the instructions by the employer for the Applicant to report for duty at Cheras Rehabilitation Hospital, the Applicant is steadfast in her view that her condition has worsened and it is not possible for her to perform any kind of work that falls within her scheme of service. Yet, at the same time, the Applicant continued her studies for a PhD. in Business Economics at Universiti Putra Malaysia (‘UPM’) during part of the period when she was on sick leave, and in her final Additional Affidavit affirmed on 22.8.2019 (Enclosure 56), the Applicant pleaded to be posted to Putrajaya so that her husband can drive her to, and from, the work place. [80] In fact, upon reading the Applicant’s affidavits and exhibits, particularly the medical reports by the private hospitals and her letters to the Respondents, it seems to me that the Applicant is sparing no efforts in her attempt to convince the Medical Board, and this Court, that she should be retired under para 10(5)(a) Act 227. The Medical Report prepared by Dr. Yusniza Mohd. Yusof, Head of the Rehabilitation Department, Cheras Hospital (exhibit “DJDS-4” Enclosure 8) reveals that: 93 “Psychological … She was cordial during the interview but became very upset when the subject of return to work was brought up. She becomes very teary and angry when the word “Medical Board” was mentioned. She wants to be medically boarded out but refuse to entertain the idea of optional retirement even though she realises her limitations. … She is fixated to her pain and quite unconcerned about the muscle spams and muscle weakness. She has a lot of apprehension, anxiety and avoids and activity which she perceived would aggravate her pain. She appears to accept her current functional ability even though she experiences side effects from her pain medication. She is unwilling to be further investigated or received any treatment from government facility. Psychological evaluation may not be helpful in this stage as she is determined to be boarded out from the service. She also has a lot of mistrust to the government service and presents with a lot of anger towards her employer.”. [81] In the eyes of the Applicant, it may seem like a “Catch-22” situation; what she perceives to be the only solution to her dilemma, namely, to 94 be medically boarded out, is being denied by the authorities, and thus the heightened feelings of animosity towards the Respondents. Even if the Applicant is required to return to work, the evidence suggests that she insists the nature of the given tasks and location of the work place must be suited to her demands, and if these are not met, she would continue submitting medical certificates to the Respondents. [82] Even though the Court symphatises with the health challenges currently faced by the Applicant, the fact remains that her rights as an officer on full-time employment in the public service are circumscribed by law, including the G.O., and by the various service, treasury and other circulars issued from time to time. The 4th Medical Board has made a clear determination as to the Applicant’s capability of discharging the duties of her office, to which the conclusion is that she is indeed capable albeit in the field of research and quality. In this circumstance, the Applicant has no legal rights whatsoever to insist that the Medical Board comes to a finding that she be compulsorily retired pursuant to para 10(5)(a) Act 227. 95 [83] Therefore, taking into account the facts and circumstances in this case, I am inclined to exercise my discretion in favor of not granting the declaration as prayed. (D) Relief (ii): Order for mandamus that the Applicant be paid gratuity and pension [84] Looking at the manner in which relief (ii) was drafted, it is strikingly obvious that whilst the Applicant could seek a mandamus order for the Respondents and/ or each of them to pay the Applicant’s salary “sehingga status pekerjaannya akhir diputuskan oleh Lembaga Perubatan”, the same cannot be said about the payment of gratuity and pensions since the entitlement for these payments arises only upon retirement. [85] In view of the decision of the 4th Medical Board which did not recommend that the Applicant be retired for medical reasons, Mr. Raam Kumar explained that the basis for the application for a mandamus order for the payment of gratuity and pensions is to be 96 understood as a follow-through from the earlier submissions in respect of the prayer for a declaration i.e., that if the Court grants the declaration that the Applicant should be retired on medical grounds, then a mandamus order for the payment of the Applicant’s gratuity and pensions should also be allowed. Looking at the issue from this standpoint, it is not necessary for me to consider this particular relief sought by the Applicant since I was not minded to grant the declaration. [86] However, the FC’s submissions have raised some pertinent points which deserve further mention here. [87] There is no doubt whatsoever that as at the date of hearing of Enclosure 7, the Applicant’s status as a grade UD54 medical officer in the government medical scheme of service remains unchanged. This is acknowledged by the Applicant in her AIS when she affirmed that: “7. Saya mula bekerja untuk Responden Kedua pada tahun 1994 sebagai seorang pegawai perubatan gred U41. Saya telah dinaikkan pangkat sebagai pekerja kerajaan 97 skala U48 pada tahun 2003, gred UD52 pada tahun 2008 dan UD54 pada tahun 2009 dan sehingga kini kekal sebagai seorang doktor pada gred UD54. Ringkasan gred and gaji saya semasa pekerjaannya setakat ini adalah seperti yang berikut: …”. [88] The key provision relating to the grant of pension, gratuity or other benefit to a “pensionable officer” which is defined in s 2 Act 227 to mean “an officer who has been conferred the status of a pensionable officer under section 7 or who is deemed to be a pensionable officer under subsection 6A (6C) or section 8”, is s 9 Act 227 and it reads: “Grant of pension, etc. 9. (1) The Yang di-Pertuan Agong may grant a pension, gratuity or other benefit to a pensionable officer on – (a) compulsory retirement under section 10; or (b) optional retirement under section 12 after completing a period of not less than ten years' reckonable service; or (c) retirement under section 11. (d) (Deleted by Act A625) 98 (2) The Yang di-Pertuan Agong may grant a pension, gratuity or other benefit to a pensionable officer if the retirement is under section 12A.”. [89] The fact that the Applicant is a pensionable officer, having been conferred the status as such in accordance with s 7 Act 227 (which provides that “A permanent officer may be conferred the status of a pensionable officer if he has – (a) been confirmed in his present appointment; and (b) completed not less than three years' reckonable service”), and is now seeking to be compulsorily retired under s 10 Act 227 are not disputed. [90] However, the word “may” in s 9 Act 227 connotes that the grant of pensions, gratuities and other forms of benefits is discretionary, as opposed to mandatory, at the pleasure of the Yang di-Pertuan Agong, and not the Respondents. This legal position is incontrovertible when seen in the light of sub-s 3(1) Act 227 which expressly provides that “No officer shall have an absolute right to compensation for past service or to any pension, gratuity or other benefit under this Act”. Gopal Sri Ram JCA in Asa'ari Muda v. Kerajaan Malaysia & Ors [2006] 3 CLJ 753 opined that: 99 “[4] I find the plaintiffs' claim to be without any merit, as did the learned trial judge, Abdul Hamid Said J, a judge with much experience in service matters. Here you have a case where the Board was acting entirely within its statutory powers. Second, the claim to an absolute right to a pension is misconceived. For, s. 3(1) of the Pensions Act 1980 expressly says that “No officer shall have an absolute right to compensation for past service or to any pension, gratuity or other benefit under this Act.” See also Haji Wan Othman v. Government of Malaya [1965] 1 LNS 51; [1965] 2 MLJ 31. Of course, a civil servant who has not misconducted himself has a legitimate expectation to receive a pension on his retirement. But such an expectation does not arise on the facts here. …”. Therefore, an officer such as the Applicant does not have an absolute right to pension and gratuity in law. [91] In her submissions, the FC had cited the decision of the Court of Appeal in Menteri Besar Negeri Pahang Darul Makmur v. Seruan Gemilang Makmur Sdn Bhd (supra) to support her argument that a mandamus order should not be granted in the present case as the Respondents are not under a duty to pay pension and gratuity to the 100 Applicant. All three judges in Seruan Gemilang Makmur delivered separate judgments whereby Sulaiman Daud JCA held that: “[37] In William Wade’s Administrative Law, Clarendon Press, Oxford, 7th edn, the learned author said, at pp. and 644: The prerogative remedy of mandamus has long provided the normal means of enforcing the performance of public duties by public authorities of all kinds … The commonest employment of mandamus is as a weapon in the hands of the ordinary citizen, when a public authority fails to do its duty to him. … [38] In M.P. Jain’s Administrative Law of Malaysia and Singapore, 2nd edn, 1980, the learned author said, at pp. 449 and 450: … Mandamus can be granted only when a legal duty is imposed on an authority and the applicant has a legal right to compel the performance of the public duty prescribed by law, and to keep the subordinate bodies and officers exercising public functions within the limit of their jurisdiction. Mandamus is thus a very wide remedy which is available against a public officer to see that he does his duty. 101 What can be enforced through mandamus is a duty of a public nature the performance of which is imperative and not optional or discretionary with the concerned authority. Thus, if an officer has a power rather than a duty, and he does not use his power, mandamus cannot be issued. [39] Section 44(1) of the SRA also empowers the court to make an order in the nature of mandamus against any person holding public office requiring him to do certain specific acts subject to the fulfilment of the five provisos set out therein (see M.P. Jain’s Administrative Law of Malaysia and Singapore, supra at p 452). … [40] It is clear from the aforesaid passages that the order of mandamus could be issued to enforce the performance of a public duty where there has been a failure to perform the same. However it cannot be used as a remedy to compel the exercise of a power by any person or authority. … … [46] In the present case the effect of the order against the appellant is to compel him to make the payment of the judgment sum pursuant to the s. 33 certificate. It is clear from the passages referred to above that the order of mandamus is to compel the performance of a duty and 102 not the exercise of a power. As such the question here is not whether the appellant has the power to make or order the making of such payment but rather whether he has a duty or obligation to make such payment. Upon perusal of the provisions of the State Constitution and the FPA, I find nothing therein that imposes such a duty or an obligation upon the appellant. The duty to make payment in satisfaction of a judgment debt against the State relates to financial affairs of the State which lies in the hands of the State Financial Officer. As such, I am of the view that the learned trial judge has erred in law in granting the order of mandamus against the appellant to compel him to pay the said judgment sum pursuant to the s. 33 certificate.” (emphasis added). [92] Based on all of the above said considerations, clearly a mandamus order should not be granted to compel the Respondents to pay pension and gratuity to the Applicant when she is not retired under para 9(1)(a) to (c) Act 227. Eeven assuming for a second that the Applicant is retired pursuant to Act 227, the Respondents are not under a public duty to grant such payments to the Applicant. Whatever course of action that the Applicant chooses to take flowing from the decision of the 4th Medical Board are her own to make but in 103 so far as the provisions under Act 227 is concerned, the Applicant has not established her entitlement to an order for mandamus in respect of the payment of pension and gratuity. (E) Relief (v): Damages and/ or compensation for alleged deprivation of rights under the Federal Constitution - The parties’ submissions [93] The relevant passages from the Applicant’s AIS and said Submission have been quoted in the earlier part of this judgment. From the said Submission, the Applicant’s pursuit of this relief is premised largely on the alleged failure by the Respondents to pay the Applicant’s salary. [94] On the part of the Respondents, the FC raised a procedural point on pleadings namely, the Applicant had failed to plead the material facts to establish the Applicant’s claim for damages as prescribed under O. 53, r. 5 read together with O. 18, r. 12 RoC 2012. Reference was made to the Court of Appeal case of Penang Port Commission v 104 Kanawagi Seperumaniam [1997] 1 CLJ 423 to support the contention that the Applicant has merely thrown her claim for damages at the head of the Court and has failed to establish that there has been a constitutional breach. [95] Apart from the above, and as mentioned earlier, the FC had prepared extensive submissions which include tables showing a snapshot of the emoluments that the Applicant is entitled to receive from 2013 to date based on the relevant provisions in the G.O. and circulars. - Analysis and decision of the Court [96] As regards the procedural issue as submitted by the Respondents, the applicable provisions in RoC 2012 are set out below for ease of reference: O. 53, r. 5 RoC 2012: “Damages (O. 53, r. 5) 105 5. (1) On an application for judicial review the Court may, subject to paragraph (2), award damages to the applicant if— (a) he has included in the statement in support of his application for leave under rule 3 a claim for damages arising from any matter to which the application relates; and (b) the Court is satisfied that, if the claim has been made in an action begun by the applicant at the time of making his application, he could have been awarded damages. (2) Order 18, rule 12, shall apply to a statement relating to a claim for damages as it applies to a pleading.”. O. 18, r. 12 RoC 2012: “Particulars of pleading (O. 18 r. 12) 12. (1) Subject to paragraph (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words- 106 (a) particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and (b) where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies. (1A) No party shall quantify any claim or counterclaim for general damages. (2) Where it is necessary to give particulars of debt, expenses or damages and those particulars exceed three folios, they shall be set out in a separate document referred to in the pleading and the pleading shall state whether the document has already been served and, if so, when, or is to be served with the pleading. (3) The Court may order a party to serve on any other party particulars of any claim, defence or other matter stated in his pleading, or in any affidavit of his to stand as a pleading, or a statement of the nature of the case on which he relies, and the order may be made on such terms as the Court thinks just. 107 (4) Where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, then, without prejudice to the generality of paragraph (3), the Court may, on such terms as it thinks just, order that party to serve on any other party- (a) where he alleges knowledge, particulars of the facts on which he relies; and (b) where he alleges notice, particulars of the notice. (5) An order under this rule shall not be made before service of the defence unless, in the opinion of the Court, the order is necessary or desirable to enable the defendant to plead or for some other special reason. (6) Where the applicant for an order under this rule did not apply by letter for the particulars he requires, the Court may refuse to make the order unless the Court is of the opinion that there were sufficient reasons for an application by letter not having been made. (7) The particulars requested or ordered and supplied shall be served in accordance with Form 31.”. 108 [97] The Applicant’s claim for damages is included in the Statement in support of her application for leave (Enclosure 2). However, even though O. 53, r. 5(1)(a) is fulfilled, the same cannot be said of O. 53, r. 5(2) RoC 2012 since Enclosure 2 is devoid of the necessary particulars of the Applicant’s claim for damages. [98] In his submissions, Mr. Raam Kumar has merely referred to Article 13 of the Federal Constitution in para 63 of the said Submission in relation to the alleged deprivation of the Applicant’s salary. However, no evidence is adduced to show what constitutional rights of the appellant have been infringed and which entitles her to be paid damages or compensation. The prayer for this relief is bereft of any evidence to support the Applicant’s entitlement to the same. It is trite that damages are not awarded simply because the plaintiff has thrown them at the head of the Court. The loss must be shown to have actually occurred and also be recoverable in law before the award can be made: per Mahadev Shankar JCA in Penang Port Commission (supra, at p 432). 109 [99] In addition, for the reasons which have been discussed earlier, I find that the alleged failure by the Respondents to pay the Applicant’s salary from 2013 to 2019 is unfounded. I have no hesistation in concluding that the Applicant is not entitled to damages and/ or compensation as the Applicant has failed to establish that there has been a constitutional breach. Conclusion [100] Based on all of the foregoing considerations, the Applicant’s application is dismissed with cost. [101] The FC prayed for cost of RM30,000.00 due to the numerous Affidavits filed and extensive evidence and submissions produced. The Applicant’s counsel countered that with a proposed sum of RM5,000.00 because the application was necessitated by the Applicant’s predicament since the Medical Board was not re-convened and she was left hanging without any emoluments being paid to her. The judicial review application was not frivolous but the 110 only way that the Applicant could assert her legal rights. To this, the FC retorted that the 3rd Medical Board found the Applicant fit to work and thus, had the Applicant reported for duty, there would not have been a need for 4th Medical Board. [102] Upon weighing the evidence adduced by the Respondents vide a total of eight Affidavits filed, excluding two Corrective Affidavits; the preparations for submissions, be it oral and written; the submissions on costs and the circumstances of the case as a whole including the order for costs of RM5,000.00 to be paid by the Applicant in respect of the striking out of the 2016 Suit, the Court was of the view that costs of RM8,000.00 to the Respondents is appropriate, and was accordingly ordered, subject to allocatur. Postscript This case involves a unique set of circumstances which have been ongoing since 2011. From the evidence adduced and the FC’s submissions, there 111 are outstanding matters which the Court advised the Respondents to look into expeditiously and these include – (a) the Applicant’s entitlement to leave with ½ pay in 2015 which has yet to be decided by the Secretary General of the Ministry of Health; (b) investigations into whether the Applicant pursued a PhD. in Business Economics at UPM whilst on medical leave; and (c) the recovery of any sums of emoluments which may have been paid to the Applicant in excess of, or contrary to, her legal entitlement. Dated: 20 April 2020 (ALIZA SULAIMAN) Judge High Court Kuala Lumpur 112 Counsels/Solicitors: For the Applicant: Raam Kumar Messrs. K.B. Tan, Kumar + Partners Advocates & Solicitors No. 11C, Jalan Wan Mohd. Salleh Greentown 30450 Ipoh Perak For the Respondents: Kogilambigai Muthusamy Federal Counsel Attorney General’s Chambers Civil Division No. 45, Persiaran Perdana Precint 4 62100 Putrajaya Cases referred to: Alloy Automotive Sdn Bhd v Perusahaan Ironfield Sdn Bhd [1986] 1 MLJ 382 Ahmad Jefri bin Mohd Jahri @ Md Johari v Pengarah Kebudayaan & Kesenian Johor [2010] 3 MLJ 145; [2010] 5 CLJ 865 Bala Krishnan Appala Naidu v Ketua Inspektor Prabakaran Shanmugam & lain [2011] 2 CLJ 890 113 Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36 Bar Council Malaysia v Tun Dato’ Seri Arifin bin Zakaria & Ors (Persatuan Peguam-peguam Muslim Malaysia, pencelah) & Reference and another case [2018] 10 CLJ 129 Dayang Khatijah Bt Jahan & Ors v Pentadbir Tanah Daerah Seberang Perai Utara Pulau Pinang [2018] 9 MLJ 22 Development & Commercial Bank Bhd v Land Administrator, Wilayah Persekutuan & Anor [1991] 2 MLJ 180 Federal Hotel Sdn. Bhd. v. National Union Of Hotel, Bar & Restaurant Workers [1983] CLJ (Rep) 50; [1983] 1 MLJ 175 Gan Chong Guan Transport Sdn Bhd v Ketua Pengarah Jabatan Pengangkutan Jalan Malaysia [2012] 2 CLJ 389 Government of Malaysia v Lim Kit Siang & Another Case [1988] 2 MLJ 12 Government of Malaysia v Rosalind Oh Lee Pek Inn [1973] 1 MLJ 222 In Re Application by Ong Eng Guan for an Order of Prohibition in Re appointment of SHD Elias [1959] MLJ 92 114 Karpal Singh v Sultan Of Selangor [1988] 1 MLJ 64 Koon Hoi Chow v Pretam Singh [1972] 1 MLJ 180 Ladang Tai Tak (KT) Sdn Bhd v Suppiah a/l Andy Thavar & Ors [1999] 5 MLJ 257 Land Executive Committee of Federal Territory v Harper Gulfillan Bhd [1981] 1 MLJ 234 Malaysian International Trading Corporation Sdn. Bhd. v RHB Bank Berhad [2016] 2 CLJ 717 Maybank Finance Bhd v Tan Say Choon [2004] 4 MLJ 95 MBF Finance Berhad v Ngoi Thiam Who [2001] MLJU 444 Members of the Commission of Enquiry v Tun Dato’ Seri Ahmad Fairuz bin Dato’ Sheikh Abdul Halim [2011] 6 MLJ 490 Menteri Besar Negeri Pahang Darul Makmur v Seruan Gemilang Makmur Sdn Bhd [2010] 5 CLJ 123 Menteri Hal Ehwal Dalam Negeri Malaysia v Karpal Singh [1992] 1 MLJ 147 115 Mersing Omnibus Co. Sdn. Bhd. v The Minister Of Labour & Manpower & Anor [1983] 2 CLJ 7 Metramac Corp Sdn Bhd (formerly known as Syarikat Teratai Sdn Bhd) v Fauziah Holdings Sdn Bhd [2006] 4 MLJ 113 Minister Of Finance, Government Of Sabah v Petrojasa Sdn Bhd [2008] 5 CLJ 321 Nordin Hj Zakaria (Timbalan Ketua Polis Kelantan) & Anor v. Mohd Noor Abdullah [2004] 2 CLJ 777 Penang Port Commission v Kanawagi Seperumaniam [1997] 1 CLJ 423 Pengarah Pelajaran, Wilayah Persekutuan v Loot Ting Yee [1982] 1 MLJ 68 QSR Brands Bhd v Suruhanjaya Sekuriti [2006] 3 MLJ 164 Re Application of Leo Boh Boey [1986] 1 MLJ 469 Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 MLJ 1 Sun Life Assurance Co. of Canada v Jervis [1944] AC 111 Tang Kwor Ham v Pengurusan Danaharta Nasional Bhd [2006] 5 MLJ 60 116 Tuan Haji Sarip Hamid & Anor v Patco Malaysia Berhad [1995] 3 CLJ 627 Yoong Sze Fatt v Pengkalen Securities Sdn Bhd [2011] 4 MLJ 805 Yu Gui v Jeffery Siew Su & Ors [2016] 1 MLJ 102 Legislation referred to: Commisions of Enquiry Act 1950, ss. 21(1), 22 Courts of Judicature Act 1964, s. 25(2), para 1 Schedule Federal Constitution, Articles 13 & 132 Pensions Act 1980, s. Rules of Court 2012, O. 18 r.12 & O. Specific Relief Act 1950, s. 44, Chapter VIII Other source(s) referred to: MP Jain’s Administrative Law of Malaysia and Singapore, Updated by Dr Damien J Cremean, Fourth Edition, LexisNexis