THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 110 ENGLISH

Dato’ Shahabudin Bin Shafie and Another v Mihat Bin Shaari
Suit Number: Civil Appeal No. K-02 (IM)(NCVC)-766-04/2017 

Employment & labour law – Termination of employment - Whether the termination of the plaintiff’s employment is invalid for non-compliance with the provisions of Kedah’s Statutory Bodies [Disciplinary and Surcharges] Enactment 2003

Litigation & court procedure – Whether the mode of commencement of action was wrong

JUDGMENT

Brief facts of the case

[1] This appeal is in respect of the decision of the learned Judicial Commissioner in allowing the respondent’s [plaintiff in the High Court] claim following a successful determination of an application filed by him under Order 14A of the Rules of Court 2012 against the appellants [the 1st & 2nd defendants in the High Court]. Hereinafter, the parties will be referred to as they were in the High Court.

[2] The plaintiff had filed the writ action after being served with a letter dated 20/2/2013 signed by the 1st defendant terminating his employment as Head of Operation of the 2nd defendant, a statutory body incorporated under the Menteri Besar Kedah Darulaman [Incorporation] Enactment 1988. The 1st defendant was, at that material time, the Chief Executive Officer [“CEO”] of the 2nd defendant, and in his statement of claim the plaintiff had prayed for inter alia, a declaration that the termination was illegal and void and that he be paid not just all the emoluments, salaries and increments due to him but also damages arising therefrom.

The Termination

[3] The background facts, which have largely been agreed giving rise to the impugned termination, have been reproduced at page 4 and paragraph 8 of the learned Judge Commissioner’s grounds of judgment [appearing at pages 1-17 of the Appeal Record]. These are in Bahasa Malaysia and we have taken the liberty to summarize the same in English below.

Background Facts

[4] [i] On 17/1/2013, the plaintiff received a letter dated 15/1/2013 [“show cause letter”] signed by the 1st defendant suspending him from his duties and asking him to show cause on charges of misconduct. We paused here to mention that the said charges are not stated in these agreed facts but were pleaded in paragraph 7[i]-[v] of the statement of claim appearing at pages 52-53 of Part C of the Appeal Record. If we may again summarize, since the issue before the High Court and in this appeal was purely a legal one, these charges were in relation to a mining permit given to Quarzcity Global Resources Sdn Bhd, a quartz extraction permit to Hadiid Mineral Mining (Kedah) Sdn Bhd and a logging permit to Tan Chun Heng. The other charge was in respect of non-compliance with the CEO’s transfer order dated 3/10/2012 as Head of Recovery Unit by tearing the said order and throwing it in front of the latter.

[ii] Vide a letter dated 23/1/2013, the plaintiff answered the said allegations.

[iii] The plaintiff was ordered to attend a domestic inquiry fixed on 5/2/2013.

[iv] The panel members of the domestic inquiry included a representative from Messr. Aswandi Hashim and Co, a legal firm who was also copied with the show cause letter sent earlier.

[v] Vide the 1st defendant’s letter dated 20/2/2013, the plaintiff was informed of the decision of the domestic inquiry which found him guilty and of the immediate termination of his employment.

The Order 14A Application

[5] The learned Judicial Commissioner has recorded the concession made by the defendants’ counsel, Ms. Siti Rafidah bt Abdul Raof that the dispute in this case could be expeditiously disposed off by way of this application. The question of law posed by the plaintiff in his application [at page 29 of Part B of the Appeal Record] was this:

Whether the termination of the plaintiff’s employment as the 2nd defendant’s officer is invalid for non-compliance with the provisions of [“2003 Enactment"] Kedah’s Statutory Bodies [Disciplinary and Surcharges] Enactment 2003.

Why the plaintiff posed this legal question was because of his contention that the 2nd defendant, being a body incorporated under the Menteri Besar, Kedah Darul Aman [Incorporation] Enactment 1988, the 2003 Enactment applies. The former Enactment appears at pages 74-75 Part C of the Appeal Record which in fact was signed by the plaintiff himself as the then clerk of the State Legislative Assembly, Kedah Darul Aman. Section 3[1] of the said Enactment expressly provides that the officer for the time being discharging the duties of the Menteri Besar, Kedah Darul Aman, and successors in office, shall be a body corporate under the name of Menteri Besar, Kedah Darul Aman. Thus by the clear provision of this Enactment the 2nd defendant is a corporation.

[6] Since it is a corporation, the plaintiff’s argument was that the defendants were bound to follow the procedure established by the 2003 Enactment which expressly provides under section 2 thereof that it applies to all statutory bodies except those listed in the First Schedule and in section 4, statutory body is defined as “a body, by whatever name called, incorporated by state law for the purpose of the State Government, but does not include a local authority”. It is opportune to pause and state here that the 2nd defendant’s name did not appear in that First Schedule. Section 5, on the other hand provides that in respect of the discipline of officers of a statutory body, the Regulations made under the 2003 Enactment applies and this Regulation appears as the Second Schedule to this Enactment. Then under section 6 thereof, separate Disciplinary Committees are established for various categories of officers for disciplinary proceedings. The pertinent provision in relation to this case is Regulation 33 and it provides as follows:

Chairman of Disciplinary Committee to determine nature of breach of discipline

33. [1] Where an officer is alleged to have committed a disciplinary offence-

[a] the Chairman of Disciplinary Committee appropriate to that officer; or

In respect of such officer, the Chairman of Disciplinary Committee having the jurisdiction to impose a punishment other than dismissal or reduction in rank;

Shall, before commencing any disciplinary proceedings in respect of the officer, consider and determine whether the disciplinary offence complained of is a nature of which warrants a punishment of dismissal or reduction in rank.

[2] If the Chairman of Disciplinary Committee referred to in sub regulation (1)(a) or (b) determines that the disciplinary offence complained of is a nature of which warrants a punishment of dismissal or reduction in rank, he shall refer the case to the Disciplinary Committee which has the power to impose such punishment.

[Emphasis added]

When the disciplinary offence complained against an officer is of such a nature that it warrants a punishment of dismissal or reduction in rank, then the appropriate Disciplinary Committee to which the case is referred shall consider all the available information.

[7] The plaintiff contended that under Part I of the Third Schedule the appropriate Disciplinary Committee to inquire into the alleged breaches complained or levelled against him, since he was in the Managerial and Professional Group, would be the State Secretary [Chairman], the State Legal Adviser, the Deputy State Secretary [Administration] and 2 other panel members to be appointed by the said Chairman. Obviously this was not the composition of the panel conducting the domestic inquiry into the plaintiff’s case for it was not disputed that none of the above named were in it. The Chairman was an advocate from Messrs. Aswandi Hashim and Co. and two others. The former’s appointment as Chairman was consented to by then Menteri Besar of Kedah in his capacity as the Chairman of the 2nd defendant’s Board of Advisors as evidenced by a letter dated 3/2/2013. As for the defendants’ counsel reliance on two cases involving the Menteri Besar of Kedah in support of their opposition to the legal question posed in the application, which were Menteri Besar Kedah Darul Aman v Matang Utara (M) Sdn Bhd [civil case no. 22 NCVC-238-9/2012] and Menteri Besar Kedah Darul Aman v Usaha Ma’amor Bersatu Sdn Bhd [2014] 1 LNS 1225, with respect they were not of much assistance to bolster her argument because both decisions of the High Court affirmed the fact that the Menteri Besar Kedah have been incorporated as Perbadanan Menteri Besar Kedah. Although See Mee Chun J in the first cited case held that the Menteri Besar can delegate his power to sign documents and a body corporate can be represented by an advocate and solicitor, in this case before us, the courts here and below were concerned with not just any power of the Menteri Besar of the 2nd defendant but the exercise of which has been specifically enacted.

[8] Before the learned Judicial Commissioner as well as before us, learned counsel for the defendants also argued that Enactment 2003 does not apply to the 2nd defendant because it was not established under the said Enactment. [see para 7 of the said written submission]. We are unable to accede to such an argument because as stated earlier, by the clear provision of that written law, the 2nd defendant is a corporation and could only escape the rigours of establishing an appropriate Disciplinary Committee stipulated in the Regulations unless its name appears in the First Schedule. In its absence, there was just no acceptable reason or an excuse for not holding the defendant to be bound by the 2003 Enactment. This despite the fact that the plaintiff’s contract of employment only states that only conditions based on the procedures and amendments in the Terms of Service of Menteri Besar Darul Aman Corporation [Terma Perkhidmatan Perbadanan Menteri Besar Kedah Darul Aman] must be complied with.

[9] Regardless of the clear view expressed above but for the sake of completeness we would address the other contention of the defendants, which was that the plaintiff should have filed a judicial review against the impugned decision, quoting this court’s decision in Ahmad Jefri bin Mohd Jahri @ Md Johari v Pengarah Kebudayaan & Kesenian Johor and Ors [2010] 3 MLJ 145 which held that the relief for a claim for infringement based solely on substantive principles of public law must be by way of an application for judicial review. In this regard it is pertinent to note that the wrong mode of commencement of this action was never raised, as it should at the outset of the action. The defendant chose not to do so and as stated earlier in this judgment, had even conceded that the Order 14A application was the best recourse to resolve the dispute in this case. Be that as it may, the case cited by the defendant’s counsel in support of this judicial review issue that is, Kanawagi Seperumaniam v Penang Port Commission [2002] 8 CLJ 503 rendered the defendant no assistance because firstly, the plaintiff in that case filed his action by way of a writ and it was resolved by way of summary judgement. Further, it also endorsed the power of the court not just to give declaratory relief but damages as well [see page 532 of judgement]. Secondly, as held by the learned Judicial Commissioner, a wrongly constituted committee had dismissed the plaintiff and to hold him bound by Order 53 of the Rules of Court 2012 would in effect be giving recognition to the invalid status of the committee.

[10] The defendants have also contended that section 20 of the Industrial Relation Act 1967 which provides the procedure for representation by a workman to the Director-General of Industrial Relation Department when he contend that the dismissal by his employer was without just cause or excuse also applies in this case but it was not followed. The short answer to it is section 52 of the said Act which provides that Part IV [as well as four other Parts of the Act] does not apply to the “Government service or to any service of any statutory authority”.

[11] For these reasons, we have dismissed the defendants’ appeal with cost and affirmed the decision of the learned Judicial Commissioner.

Dated: 23 February 2018

Signed

RHODZARIAH BINTI BUJANG
Judge
Court of Appeal Malaysia
Putrajaya

COUNSEL

For the Appellant: Ms. Siti Rafidah Binti Abdul Raof and Mrs. Nurfarhana Binti Fadzil, Messrs. Aswandi Hashim & Co

For the Respondent: Mrs. Siti Zuhairah Binti Zulkifli, Messrs. Ahmad Farid & Associates

Legislation referred to:

Industrial Relation Act 1967, Sections 20, 52

Kedah’s Statutory Bodies [Disciplinary and Surcharges] Enactment 2003, First, Second and Third Schedule; Regulations 33, 33 [1], 33 [1][a], 33 [2]; Sections 2, 3[1], 4, 5, 6

Menteri Besar Kedah Darulaman [Incorporation] Enactment 1988

Rules of Court 2012, Order 14A, 53

Judgments referred to:

Ahmad Jefri bin Mohd Jahri @ Md Johari v Pengarah Kebudayaan & Kesenian Johor and Ors [2010] 3MLJ 145

Kanawagi Seperumaniam v Penang Port Commission [2002] 8 CLJ 503

Menteri Besar Kedah Darul Aman v Matang Utara (M) Sdn Bhd [civil case no. 22 NCVC-238-9/2012]

Menteri Besar Kedah Darul Aman v Usaha Ma’amor Bersatu Sdn Bhd [2014] 1 LNS 1225

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