Zulhilmi Bin Zabri v Nor Effahazira Binti Mohamad Khairudin (WA-25-197-07/2023)

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1 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN KUASA-KUASA KHAS) PERMOHONAN SEMAKAN KEHAKIMAN NO.: WA-25-197-07/2023 Dalam perkara Permohonan oleh Zulhilmi bin Zabri untuk suatu perintah certiorari dan/atau mandamus. Dan Dalam perkara Perkara 5 dan 8, 10, Bahagian VIII dan

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Jadual Ke-13, Perlembagaan Persekutuan Dan Dalam perkara Seksyen 25(2) dan/atau item 1 dan 11, Jadual, Akta Mahkamah Kehakiman 1964 Dan Dalam perkara Aturan 53, Kaedah-Kaedah Mahkamah 2012 dan/atau bidang kuasa sedia ada Mahkamah Dan Dalam perkara Keputusan Rayuan Tidak Memperakukan Diploma Pascasiswazah Pengurusan Awam Intan Tahun 2022 oleh Mesyuarat Search Committee Ketua Pengarah Perkhidmatan Awam bertarikh 07.04.2023 Dan Dalam perkara Keputusan Jawatankuasa Disiplin Program DPA berkenaan Pelanggaran Peraturan-Peraturan Program Diploma Pasca Siswazah Pengurusan Awam (DPA) ANTARA ZULHILMI BIN ZABRI (NO. K/P: 920209-06-5027) …PEMOHON S/N pNiJubIa5UCk64BLq0myog DAN 1. NOR EFFAHAZIRA BINTI MOHAMAD KHAIRUDIN 2. NURUL ‘AIN HAZIRAH BINTI ABDULLAH 3. NUR ATIQAH BINTI MOHD HARIS 4. SITI NUR FAKHIRAH BINTI MOHAMAD MATAHAB 5. MUHAMMAD RUDY KHAIRUDIN BIN MOHD NOR 6. AZMIL BIN ABRAR 7. HAMIMA MADONA BINTI HUSSAIN 8. LIYANA HAWA BINTI HAMZAH 9. ROZAIDATUL RAHIZAH BINTI AZMAN 10. AIDIL HASINAH BINTI ABU BAKAR 11. SOFIAH BINTI AHMAD SHAHUDDIN 12. IEZZAT KHALIS BIN MOHD NOR 13. MUHAMMAD AIMAN BIN MAAROF 14. NOR SAFIRAH BINTI SAHEDAN 15. ZULKIFLY BIN MOHD YUNUS 16. SHA’IF BIN BAHARUDDIN 17. SITI AISYAH BINTI AZLAN 18. SHAHIRA HUSNA BINTI JAMALUDIN 19. MOHAMAD NOR AZRIZAN BIN IDRIS 20. NUR KAMARUL SYAABAH NG BINTI MOHAMMAD HAFIZ 21. MOHAMAD ZAINUDIN BIN ASHAARI 22. MUHAMMAD IKRAM BIN ABDUL HALIM 23. NURHUDA BINTI JAAFAR 24. WAN RAHMAT ALHAFIZ BIN MOHD RAPI 25. UNIT DIPLOMA PASCASISWAZAH PENGURUSAN AWAM 26. JAWATANKUASA DISIPLIN PROGRAM DPA 27. LEMBAGA DISIPLIN PROGRAM DPA 28. JAWATANKUASA PENSIJILAN INTAN 29. JABATAN PERKHIDMATAN AWAM MALAYSIA 30. SURUHANJAYA PERKHIDMATAN AWAM MALAYSIA 31. KERAJAAN MALAYSIA …RESPONDEN-RESPONDEN JUDGMENT S/N pNiJubIa5UCk64BLq0myog [1] There is before me an application for leave to commence judicial review against the putative respondents herein. [2] The brief factual background of the applicant’s case is as follows. The applicant was a participant in the “Diploma Pasca Siswazah Pengurusan Awam” (“DPA”) course for the year 2022. [3] The 1st to the 4th putative respondents were also the participants in the said DPA program. The 5th to the 24th putative respondents were the officers who handled the DPA program in the relevant year. They were from the Unit Diploma Pentadbiran Awam (“UDPA”). UDPA is placed under the administration of the National Institute of Public Administration (“INTAN”). [4] The 25th to 28th putative respondents are the various bodies that handle the DPA program, including the certification and disciplinary matters. The 29th putative respondent is the Public Service Department (“JPA”). The 30th putative respondent is the Public Services Commission of Malaysia (“SPA”). [5] The 31st putative respondent is the Government of Malaysia. [6] On 31.12.2021, the applicant was offered by the SPA and JPA to enrol for the DPA program, which was to commence from February to December 2022 at INTAN in Bukit Kiara. The applicant then signed an agreement with the JPA dated 7.2.2022 to enrol in the program. [7] On 23.10.2022, the Applicant received a letter from INTAN dated 19.10.2022, which stated that the Applicant had violated reg 29 (c) of the DPA Regulations. The applicant was alleged to have committed sexual harassment against four women participants – the putative 1st to 4th respondents. Reg 29(c) of the DPA Regulations provides as follows: Melakukan apa-apa kesalahan jenayah seperti memiliki atau penyalahgunaan dadah, judi, mencuri, gangguan seksual, vandalisme dan sebagainya. S/N pNiJubIa5UCk64BLq0myog [8] Pursuant to reg 30 (a) of the DPA Rules, INTAN issued a show cause letter dated 19.10.2022, and the Applicant was given one (1) day to respond to the allegations. There are 16 separate sexual harassment charges against the applicant. [9] The applicant submitted his explanation through an email dated 23.10.2022. In essence, the applicant denied all the charges proffered against him. [10] On 21.11.2022, the applicant received a letter dated 19.11.2022 from INTAN. According to the letter, the INTAN Disciplinary Committee of the DPA program found that the applicant was guilty of all the 16 charges against him. The finding of guilt had affected the applicant’s grading for the DPA program. In short, he had failed to achieve the required minimum grade. Save for the 3rd charge, the applicant was given a warning on all remaining charges. [11] As to the 3rd charge, the punishment meted against the applicant was a warning and a reduction of 10 marks in the assessment of the Character Development Component. The 3rd charge states as follows: Selepas berlangsungnya Majlis Malam Impak Maksima yang diadakan pada 31 Mac 2022 (Khamis) di Dewan Cemerlang semasa Modul Bomba dan Penyelamat Siri 3 (Sidang Mahasura) telah menyentuh xxx binti xxx di bahagian peha sehingga membuatkan peserta kurang selesa. As a result of the reduction of the marks, the applicant failed to get the minimum grade of 65% required of him under the DPA program. [12] Subsequently, the Applicant submitted an appeal vide a letter dated 31.1.2023 to the Director General of Public Services (“KPPA”) to review the JPA’s decision. However, the appeal was rejected vide a letter from the JPA dated 7.4.2023. The application for leave for judicial review [13] This application for leave for judicial review is supported by the affidavit of the applicant in Encl 3 (“AIS-3”). S/N pNiJubIa5UCk64BLq0myog [14] In this application for leave, the applicant, inter alia, seeks for the following: (a) An order of certiorari to quash the disciplinary proceedings against the applicant and the punishment meted out vide the letters dated 23.10.2022, 4.11.2022 and 19.11.2022. (b) An order of certiorari to quash the decision of the Search Committee of the KPPA vide the letter dated 7.4.2023, which rejected the applicant’s appeal. (c) An order of mandamus directing the putative 25th to 31st respondents to take the necessary steps to certify the award of the DPA program to the applicant. (d) As a consequential order, an order of mandamus directing the putative 25th to 31st respondents to take the necessary steps to appoint the applicant into the Administrative and Diplomatic Service scheme (“PTD”). The Attorney General’s objection [15] The Attorney General objects to this application for leave. [16] Before me, the learned Federal Counsel who appeared for the AG submitted that this application for leave was filed out of time. O 53 r 3(6) of the Rules of Court 2012 provides as follows: 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. The learned FC highlighted the following impugned decisions which are the subject matter of this judicial review application. They are as follows: (a) The 1st impugned decision is the letter from INTAN, dated 19.11.2022. By his own admission in Eksh ZZ-12, the applicant received the letter on 21.11.2022. The letter states inter alia as follows: S/N pNiJubIa5UCk64BLq0myog Dimaklumkan bahawa Jawatankuasa Disiplin Program Diploma Pasca Siswazah Pengurusan Awam (DPA) INTAN yang bersidang pada 14 November 2022 telah memutuskan bahawa Tuan, ZULHILMI BIN ZABRI (NO. K/P: 920209065027) didapati bersalah melanggar Peraturan-Peraturan Program Diploma Pasca Siswazah Pengurusan Awam dan Kod Etika Peserta Program DPA ... (b) The 2nd impugned decision from the JPA dated 23.11.2022, which is in Eksh ZZ-6 of AIS-3, referred to the decision of the INTAN Certification Committee in refusing to certify the applicant for the award of the DPA program. The letter inter alia states that: Mesyuarat Jawatankuasa Pensijilan INTAN Tahun 2022 yang bersidang pada 22 November 2022 telah memutuskan bahawa tuan tidak diperakukan untuk dianugerahkan Diploma Pascasiswazah Pengurusan Awam (DPA) INTAN Tahun 2022 kerana gagal memperoleh gred minimum lulus yang ditetapkan iaitu 65% bagi Pencapaian Keseluruhan. Hal ini menyebabkan tuan gagal keseluruhan program DPA INTAN Tahun 2022 kerana tidak mematuhi kehendak Peraturan-Peraturan Program Diploma Pascasiswazah Pengurusan Awam INTAN. By his own admission, the applicant received the letter on 25.11.2022. [17] In short, the 1st impugned decision was first communicated to the applicant on 21.11.2022, while the 2nd impugned decision was made known to him on 25.11.2022. [18] If we take the 2nd impugned decision as a yardstick, the applicant should have filed his application for leave for judicial review by 25.2.2023. [19] However, this application for leave was only filed on 14.7.2023. The learned FC submitted that the applicant is clearly out of time as stipulated under O 53 r 3(6) of the ROC. S/N pNiJubIa5UCk64BLq0myog Analysis [20] I have gone through the application in Encl 1, particularly prayer (1), and note that the applicant referred to O 53 r 3(7) of the ROC, although there was no specific mention to extend the time in the prayer itself. O 53 r 3(7) provides as follows: The Court may, upon an application, extend the time specified in rule 4(1) and if it considers that there is a good reason for doing so. [21] What then is the law? In order for the Court to exercise its discretion to extend the time under O 53 r 3(7), the first thing to do is to deliberate the applicant’s explanation for the delay. The law is explained by the judgment of the majority of the Court of Appeal in Seruan Gemilang Makmur Sdn Bhd v Pegawai Kewangan Negeri Pahang [2016] 2 MLJ 225 CA. In delivering the majority judgment, Zawawi Salleh JCA (later FCJ) remarked as follows: In our view, the learned judge had correctly applied the principles governing an application for extension of time to apply for leave for judicial review. In determining whether to extend time, Her Ladyship dealt first with the appellant’s explanation for the delay. Her Ladyship held that the explanation given by the appellant was unacceptable and consequently dismissed the appellant’s application for an extension of time. Her Ladyship did not consider the merits of the leave application for judicial review. [22] From the said proposition, it is clear that in an application under O 53 r 3(7), as in this case, the applicant must first explain the delay. Secondly, before the Court, in exercising its discretion, allows the application for the extension of time, it must consider the reason for the delay to be a good one. In short, the explanation must be affirmed by the applicant in the affidavit in support. [23] I have anxiously read through AIS-3. There is nothing in AIS-3 that gives an explanation for the delay. Why did the applicant wait more than eight months before commencing this application for leave? Since the 3-month period ended in February 2023, why did the applicant wait until 14.7.2023 to file this application for leave? What happened between February 2023 to 14.7.2023? What is stopping S/N pNiJubIa5UCk64BLq0myog the applicant from filing the application for leave immediately after the 2nd impugned decision, which he received on 25.11.2022? There is no explanation at all in AIS-3. [24] Even if the applicant were to rely on the letter dated 7.4.2023 from the JPA on the rejection of his appeal, save for his bare assertion, there is no evidence that he received it on 19.4.2023. This is in contrast with the 1st and 2nd impugned decisions in Eksh ZZ-12 and Eksh ZZ-6, respectively, where the applicant exhibited the “Surat Akuan Terima” with the relevant dates. [25] The applicant had the opportunity to exhibit the relevant document when the learned FC raised the objection in his written submission in Encl 7. Unfortunately, the applicant did not file any further affidavit. [26] In any event, in my respectful view, the letter dated 7.4.2023 cannot be considered an impugned decision. My reason is this. There is no avenue for appeal for any decision made by the DPA Program Disciplinary Committee. Reg 34.3 of the DPA Regulations states as follows: Keputusan Jawatankuasa atau Lembaga Disiplin Program DPA adalah muktamad dan hendaklah dimaklumkan kepada peserta dalam tempoh 7 hari dari keputusan dibuat. In short, the letter dated 7.4.2023 from the JPA is not even a “decision, action or omission” that is capable of being impugned under O 53 r 2(4) of the ROC. [27] In the circumstances, there is a finality in the 1st and 2nd impugned decisions. There is no domestic remedy in the form of an appeal to the KPPA. The KPPA has no authority to reverse the decision made by the DPA Program Disciplinary Committee. [28] What the applicant should have done after the 2nd impugned decision was first communicated to him was to commence the application for leave to challenge the same within the 3-month period stipulated under O 53 r 3(6). Unfortunately, this is not done. S/N pNiJubIa5UCk64BLq0myog [29] There is therefore no material before this Court for me to exercise my discretion under O 53 r 3(7) to extend the time. The attendant consequence of my finding is that this application for leave is out of time. [30] Since the application for an extension of time is dismissed, this Court no longer has the jurisdiction to adjudicate on the matter. Whatever the merits of the application are no longer relevant and cannot be considered by this Court. [31] The Federal Court in Wong Kin Hoong & Anor v. Ketua Pengarah Jabatan Alam Sekitar & Anor [2013] 4 CLJ 193 FC held that when the Court has no jurisdiction to hear the application for judicial review, the question of merits of the application is no longer relevant. Raus Sharif PCA (as the former CJ then was) remarked as follows: In conclusion, we are of the view that the time frame in applying for judicial review prescribed by the Rules is fundamental. It goes to jurisdiction and once the trial judge had rejected the explanation for the delay for extension of time to apply for judicial review, it follows that the court no longer has the jurisdiction to hear the application for leave for judicial review. Whether the application has merits or not, is irrelevant. [32] As a consequential order, the application for leave for judicial review is refused. [33] Costs is fixed at RM1,000. [34] In view of my ruling, I will not address the remaining issues raised by the learned FC. Tarikh: 31 Mei 2024 (WAN AHMAD FARID BIN WAN SALLEH) Hakim Mahkamah Tinggi Kuala Lumpur. S/N pNiJubIa5UCk64BLq0myog Pihak-pihak: Bagi Pihak Perayu : Muhamad Izwan Bin Ishak Khairul Hazwan Bin Rashid Tetuan Amirul Shahidda & Co. Bagi Pihak Responden : Muhammad Hairuliqram bin Hairuddin FC Jabatan Peguam Negara, Putrajaya S/N pNiJubIa5UCk64BLq0myog