BREACH OF NATURAL JUSTICE: LEMBAGA TATATERTIB PERKHIDMATAN AWAM, HOSPITAL BESAR PULAU PINANG V UTRA BADI A/L K PERUMAL [2000] 3 MLJ 281 CIVIL APPEAL NO P-01-185 OF 1996 COURT OF APPEAL (KUALA LUMPUR)

3 MLJ 281, *; [2000] 3 MLJ 281

The Malayan Law Journal
LEMBAGA TATATERTIB PERKHIDMATAN AWAM, HOSPITAL BESAR PULAU PINANG V UTRA BADI A/L K PERUMAL
[2000] 3 MLJ 281
CIVIL APPEAL NO P-01-185 OF 1996
COURT OF APPEAL (KUALA LUMPUR)
DECIDED-DATE-1: 3 MAY 1999
GOPAL SRI RAM, SITI NORMA YAAKOB AND MOKHTAR SIDIN JJCA
CATCHWORDS:
Administrative Law – Rights and liabilities of public servants – Termination of service of member of public service – Steps in public disciplinary process – Whether public servant has right to make representations on question of punishment or plead mitigation – General Orders (Conduct and Discipline) (Cap D) 1980 Part III – Federal Constitution arts 5(1), 8(1) & 135(2)

HEADNOTES:
The respondent was dismissed from the public service. He instituted proceedings for wrongful dismissal. The trial judge held that the respondent had been wrongfully dismissed and granted the respondent the relief sought by him (see [1998] 3 MLJ 676). The appellant appealed. It was common ground that the respondent was not afforded an oral hearing. It was also common ground that the respondent was not afforded an opportunity to make a plea in mitigation upon the issue of punishment. In the court below, the appellant submitted that they were under no duty to afford the respondent an opportunity to mitigate before punishment was imposed. It was argued that the show cause letter dated 31 January 1991 was sufficient. In support of that argument, the appellants relied on certain observations made by the Lord President in Inspector General of Police v Alan Noor bin Kamat [1988] 1 MLJ 260 (‘ Alan Noor‘). The trial judge treated these observations as mere obiter dicta. Before this court, the appellants critized the judge’s approach and argued that the judge was wrong in treating the observations of the Lord President in Alan Nooras mere obiter dicta. The appellants also argued that in disciplinary proceedings brought against a member of the public service, there is no separate right to make representations upon the question of the punishment that ought to be meted out.

Held, dismissing the appeal:
(1)   (Per Gopal Sri Ram JCA) The court was satisfied that the
observation of the Lord President in Alan Noor were merely obiter dicta
as they were unnecessary for the actual decision in that case. It follows
that the court was in agreement with the trial judge in his interpretation of
that case and for that reason the court must reject the first submission
advanced by the appellants (see pp 293H-294A).
(2)   (Per Gopal Sri Ram JCA) Save in those cases falling under Pt III
of the General Orders (Conduct and Discipline) (Cap D) 1980, there are two
separate and distinct steps in the public disciplinary  [*282] process.
The first step is for the disciplinary authority to decide upon the issue of
guilt or innocence. If the decision is in favour of the employee, that is the
end of the matter. But if the relevant authority finds the public servant
guilty, then, and only then, does the question of punishment arise (see p
294C-D).
(3)   (Per Gopal Sri Ram JCA) When a person is derived of his
reputation, it would amount to a deprivation of ‘life’ within art 5(1) of the
Federal Constitution. The combined effect of arts 5(1) and 8(1) of the
Federal Constitution is to demand fairness both in procedure and in substance
whenever a public law decision has an adverse effect on any of the facets of
a person’s life. Among these facets are a person’s livelihood and his
reputation. Procedural fairness demands not only the right in a public
servant to make representations on the truth of the charges framed against
him. It includes the right to make representations on the question of
punishment (see p 296A-C).
(4)   (Per Gopal Sri Ram JCA) This was a case of alleged misconduct
that was manifestly unsuitable for resolution purely on the basis of written
representations. The facts here demanded an oral hearing. The appellants’
failure to accede to the respondent’s request for such a hearing, on the
facts of the instant case, constituted a failure to accord procedural
fairness (see p 299C-D).
(5)   (Per Siti Norma Yaakob JCA) From the language of the show cause
letter and in the light of the alternative punishments that might be imposed
on the respondent, the respondent should have been given the opportunity to
plead in mitigation before any punishment was meted against him. This
reasoning runs in line with the provisions of general order 23. This
reasoning too harmonises with the provisions of art 135(2) of the Federal
Constitution (see p 302E-G).
(6)   (Per Siti Norma Yaakob JCA) In the circumstances of this appeal,
the right to be heard extended not only to the first stage of the proceedings
before the first appellant but also to the second stage before punishment was
passed. The proceedings before the first appellant were flawed in that there
had been procedural unfairness and as such could not be sustained (see pp
302G-303A).

Bahasa Malaysia summary

Responden telah dipecat daripada perkhidmatan awam. Beliau telah memulakan prosiding-prosiding untuk pemecatan salah. Hakim yang membicara telah memutuskan bahawa responden telah dipecat dengan salah dan memberikan responden relif yang dipohon olehnya (lihat [1998] 3 MLJ 676). Perayu telah merayu. Ia adalah dipersetujui bahawa responden tidak diberikan perbicaraan lisan. Ia juga dipersetujui bahawa responden tidak diberikan peluang untuk  [*283] membuat hujahan hukuman ringan di atas isu hukuman. Di mahkamah bawahan, perayu telah menghujahkan bahawa mereka tiada kewajipan untuk memberikan responden peluang untuk menghujahkan hukuman ringan sebelum hukuman dikenakan. Ia juga dihujahkan bahawa surat untuk menunjukkan sebab bertarikh 31 Januari 1991 adalah mencukupi. Di dalam menyokong hujahan tersebut, perayu telah bergantung kepada pemerhatian yang dibuat oleh Ketua Hakim Negara di dalam Inspector General of Police v Alan Noor bin Kamat [1988] 1 MLJ 260 (‘ Alan Noor‘). Hakim yang membicara telah menganggap pemerhatian-pemerhatian sebagai hanyalah obiter dicta. Di hadapan mahkamah ini, perayu-perayu telah mengkritik pendekatan hakim dan menghujahkan bahawa hakim adalah salah di dalam menganggap pemerhatian-pemerhatian tersebut oleh Ketua Hakim Negara di dalam Alan Noor sebagai hanyalah obiter dicta. Perayu-perayu juga menghujahkan bahawa di dalam prosiding-prosiding disiplin yang dibawa terhadap seorang ahli perkhidmatan awam, tiada hak berasingan untuk membuat representasi-representasi di atas persoalan hukuman yang patut dijalankan.

Diputuskan, menolak rayuan tersebut:
(1)   (Oleh Gopal Sri Ram HMR) Mahkamah telah berpuashati bahawa
pemerhatian oleh Ketua Hakim Negara di dalam Alan Noor hanyalah obiter
semata-mata oleh kerana ia adalah tidak perlu untuk keputusan sebenar kes
tersebut. Oleh itu, mahkamah bersetuju dengan penafsiran hakim membicara di
dalam penafsiran kes tersebut dan dengan alasan tersebut mahkamah mestilah
menolak hujahan pertama yang diutarakan oleh perayu-perayu (lihat ms
293H-294A).
(2)   (Oleh Gopal Sri Ram HMR) Kecuali di dalam kes-kes yang terjatuh
di bawah Bahagian III Perintah-Perintah Am (Kelakuan dan Disiplin) (Bab D)
1980, terdapat dua langkah berasingan dan berbeza di dalam proses disiplin
awam. Langkah pertama adalah untuk pihak berkuasa yang melaksanakan tindakan
disiplin untuk memutuskan isu kebersalahan atau tidak bersalah. Jika
keputusan tersebut adalah berpihak kepada kakitangan, perkara tersebut akan
berakhir. Tetapi jika pihak yang melaksanakan disiplin mendapati bahawa
kakitangan awam adalah bersalah, maka, dan hanya pada masa tersebut,
persoalan hukuman akan berbangkit (lihat ms 294C-D).
(3)   (Oleh Gopal Sri Ram HMR) Di mana seseorang dilucutkan daripada
reputasinya, ia dikira merampas ‘kehidupan’ seseorang di dalam maksud perkara
5(1) dan 8(1) Perlembagaan Persekutuan. Kesan gabungan perkara 5(1) dan 8(1)
Perlembagaan Persekutuan adalah untuk menuntut keadilan daripada segi
prosedur dan asas apabila keputusan undang-undang awam mempunyai kesan yang
bertentangan ke atas sebarang aspek kehidupan seseorang. Antara aspek-aspek
ini  [*284] adalah mata pencarian dan reputasi seseorang. Keadilan
prosedur menuntut bukan hanya hak kakitangan awam untuk membuat
representasi-representasi di atas kesahihan pertuduhan yang ditujukan
terhadap mereka. Ia termasuk hak untuk membuat representasi-representasi di
atas persoalan hukuman (lihat ms 296A-C).
(4)   (Oleh Gopal Sri Ram HMR) Ini adalah kes pengataan salah laku
yang secara jelas tidak sesuai untuk diputuskan semata-mata berdasarkan
representasi-representasi bertulis sahaja. Fakta-fakta di sini menuntut suatu
perbicaraan lisan. Kegagalan perayu untuk menyetujui permintaan responden
untuk perbicaraan sedemikian, di atas fakta kes ini, terjumlah kepada
kegagalan untuk memberikan keadilan prosedur (lihat ms 299C-D).
(5)   (Oleh Siti Norma Yaakob HMR) Daripada bahasa surat menunjukkan
sebab dan memandangkan hukuman-hukuman alternatif yang mungkin dikenakan ke
atas responden, responden sepatutnya diberikan peluang untuk menghujahkan
hukuman ringan sebelum sebarang hukuman dijalankan terhadapnya. Pandangan ini
adalah selaras degan peruntukan-peruntukan perintah am 23. Pandangan ini juga
selaras dengan peruntukan perkara 135(2) Perlembagaan Persekutuan (lihat ms
302E-G).
(6)   (Oleh Siti Norma Yaakob HMR) Di dalam keadaan-keadaan rayuan
ini, hak untuk didengar diluaskan bukan hanya kepada peringkat pertama
prosiding-prosiding sahaja di hadapan perayu pertama tetapi juga peringkat
kedua di mana hukuman dijatuhkan. Prosiding-prosiding di hadapan perayu
pertama adalah cacat kerana terdapat ketidakadilan prosedur dan dengan
demikian tidak boleh dipertahankan (lihat ms 302G-303A).]

Notes

For cases on rights and liablities of public servants generally, see 1 Mallal’s Digest(4th Ed, 1998 Reissue) paras 502-556.

Cases referred to
B Surinder Singh Kanda v The Government of Malaya [1962] MLJ 169
Board of Trustees of the Port of Bombay v Dilipkumar AIR 1983 SC 114
Co-operative Central Bank Ltd v Feyen Development Sdn Bhd [1997] 2 MLJ 829
Francis Coralie v Union of India AIR 1981 SC 746
Ghazi bin Mohd Sawi v Mohd Haniff bin Omar & Anor [1994] 2 MLJ 114
[*285]
Hong Leong Equipment Sdn Bhd v Liew Fook Chuan [1996] 1 MLJ 481
Inspector General of Police v Alan Noor bin Kamat [1988] 1 MLJ 260
Jorgensen v Australian Securities & Investment Commission [1999] FCA 356
Kumpulan Perangsang Selangor Bhd v Zaid bin Haji Mohd Noh [1997] 1 MLJ 789
Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor [1999] 3 MLJ 1
Najar Singh v Government of Malaysia [1976] 1 MLJ 203
Pakistan v Lall LR 75 IA 225
Pretoria City Council v Levison (1949) 3 SA 405
R v Army Board; ex p Anderson [1991] 3 All ER 375
R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145
Raja Abdul Malek v Setiausaha Suruhanjaya Pasukan Polis & Ors [1995] 1 MLJ 308
Rohana bte Ariffin & Anor v Universiti Sains Malaysia [1989] 1 MLJ 487
Sowmithri Vishnu v Union of India AIR 1985 SC 1618
Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261
Travancore Rayons v Union of India AIR 1971 SC 682
Utra Badi a/l K Perumal v Lambaga Tatatertib Perkhidmatan Awam & Anor [1998] 3 MLJ 676

Legislation referred to

Federal Constitution arts 5(1), 8(1), proviso (a) , (d) to art 135(2)

Government of India Act 1935 s 240(3)

Indian Constitution art 21

Public Officers (Conduct and Discipline) (Chapter D) General Order 1980 general orders 4(2)(d), 23, 26(1), 26(2), 26(4), 35, 36(i), Pt II, Pt III

Suit No 22-322 of 1991 (High Court, Pulau Pinang)

Asmabi bte Mohamad (Senior Federal Counsel, Attorney General’s Chambers) and Azizah bte Nawawi (Federal Counsel, Attorney General’s Chambers) with her for the appellant.

Eric Paulsen ( Karpal Singh & Co) for the respondent.

APPFROM: Suit No 22-322 of 1991 (High Court, Pulau Pinang)

LAWYERS: Asmabi bte Mohamad (Senior Federal Counsel, Attorney General’s Chambers) and Azizah bte Nawawi (Federal Counsel, Attorney General’s Chambers) with her for the appellant.

Eric Paulsen ( Karpal Singh & Co) for the respondent.

JUDGMENTBY: GOPAL SRI RAM JCA

: As long ago as March 1991, the respondent was dismissed from the public service. On 6 November 1991, he instituted proceedings for wrongful dismissal. His action was heard and disposed off on 30 May 1996. The learned judge who tried the action held that the respondent had been wrongfully dismissed. He granted the respondent the relief sought by him (see [1998] 3 MLJ 676). The appellants being  [*286] dissatisfied with the decision appealed to this court. Their appeal was heard and dismissed on 3 May 1999.

The issue in this appeal concerns the right to procedural fairness. It is a constitutional right. It forms one of the cornerstones of our public law jurisprudence. It is an issue which our courts have already dealt with in several cases. See B Surinder Singh Kanda v The Government of Malaya [1962] MLJ 169; Rohana bte Ariffin & Anor v Universiti Sains Malaysia [1989] 1 MLJ 487; Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261; and the very recent decision of the Federal Court in Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor [1999] 3 MLJ 1. Although the content of procedural fairness is well settled, its application varies according to the facts of each particular case. It is necessary to allude to the factual matrix relevant to this appeal in order to appreciate the issues.

At all material times, the respondent was employed as a hospital attendant at the Penang General Hospital. On 5 May 1990, the respondent underwent a spot urine test. About eight months later, by a letter dated 31 January 1991, the first appellant instituted disciplinary proceedings against the respondent. It is an important document. The judge produced it in extenso in his judgment. We will merely reproduce the relevant portion of that letter. When translated into English, it reads as follows:
[T]he Disciplinary Board, after considering all information received,
is of the view that you are to be subjected to disciplinary action with
a view to dismissal or demotion pursuant to general order 26, Public
Officers (Conduct and Discipline) (Chapter D) General Orders 1980 on
the following charges:
‘That you, Mr Utra Badi a/l K Perumal, while on duty as a
Hospital Attendant T Biasa in the General Hospital, Penang in an
on-the-spot urine test on 5 May 1990 was confirmed to be a drug
addict because a urine sample taken was found to be positive for
morphine. Your act in becoming a drug addict amounts to an act
which can bring disrepute to the Public Service and which
contravenes the conduct under O 4(2)(d), Public Officers (Conduct
and Discipline) (Chapter D) General Order 1980.’
If you are found guilty, you will be punished pursuant to O 36 of the
same general orders.
Pursuant to general order 26 of the General Orders (Conduct and
Discipline) (Cap D) you are required to make a written representation
setting out the grounds upon which you seek to exculpate yourself.

For completeness, I will reproduce the three general orders referred to in the aforesaid letter.

The first is O 4(2)(d) which reads:
(4)   The following is the code of conduct of officers in the public
service. The breach of any of the provision of this code by an
officer renders him liable to disciplinary action under these
General Orders:  [*287]
(2)   An officer shall not –
(d)   conduct himself in such manner as to bring the public
service into disrepute or to bring discredit thereto;
… .

The second is general order 26 which reads as follows:
(1)   Where it is represented to, or is found by, the Appropriate
Disciplinary Authority that an officer is guilty of
unsatisfactory work or misconduct and such work or misconduct, in
the opinion of the Disciplinary Authority, merits dismissal or
reduction in rank, the provisions of the following paragraphs
shall apply.
(2)   The Appropriate Disciplinary Authority shall, after considering
all the available information in its possession that there is a
prima facie case for dismissal or reduction in rank, cause to be
sent to the officer a statement in writing, prepared, if
necessary, with the aid of the Legal Department, of the ground or
grounds on which it is proposed to dismiss the officer or reduce
him in rank and shall call upon him to state in writing within a
period of not less than fourteen days from the date of receipt of
the letter a representation containing grounds upon which he
relies to exculpate himself.
(3)   If after consideration of the said representation, the
Appropriate Disciplinary Authority is of the opinion that the
unsatisfactory work or conduct of the officer is not serious
enough to warrant dismissal or reduction in rank, the
Disciplinary Authority may impose upon the officer such lesser
punishment as it may deem fit.
(4)   If the officer does not furnish any representation within the
specified time, or if he furnishes a representation which fails
to exculpate himself to the satisfaction of the Appropriate
Disciplinary Authority, it shall then proceed to consider and
decide on the dismissal or reduction in rank of the officer.
(5)   Where the Appropriate Disciplinary Authority considers that the
case against the officer requires further clarification, it may
appoint a Committee of Inquiry consisting of not less than two
senior Government officers who shall be selected with due regard
to the standing of the officer concerned and to the nature and
gravity of the complaints which are the subject of the inquiry,
provided that an officer lower in rank than the officer who is
the subject of the inquiry or the officer’s Head of Department
shall not be selected to be a member of the Committee.
(6)   The officer shall be informed that, on a specified day, the
question of his dismissal or reduction in rank will be brought
before the Committee and that he will be allowed and if the
Committee shall so determined, shall be required to appear before
the Committee and exculpate himself.
(7)   If witnesses are examined by the Committee, the officer shall be
given an opportunity to be present and to question the witnesses
on his own behalf and no documentary evidence shall be used
against him unless he has previously been supplied with a copy
thereof or given access thereto.  [*288]
(8)   The Committee may, permit the Government or the officer to be
represented by an officer in the public service or, in
exceptional cases, by an advocate and solicitor and may at any
time, subject to such adjournment as is reasonably necessary to
enable the officer to present his case in person, withdraw such
permission:
Provided that where the Committee permits the Government to be
represented, it shall also permit the officer to be similarly
represented.
(9)   If, during the course of the inquiry, further grounds for
dismissal are disclosed, and the Appropriate Disciplinary
Authority thinks fit to proceed against the officer upon such
grounds, the officer shall be furnished with a written statement
thereof and the same steps shall be taken as are prescribed above
in respect of the original grounds.
(10)  The Committee having inquired into the matter, shall make a
report to the Appropriate Disciplinary Authority. If the
Disciplinary Authority considers that the report is not clear in
any respect or that further inquiry is desirable, the matter may
be referred back to the Committee for further inquiry and report.
(11)  If, upon considering the report of the Committee the Appropriate
Disciplinary Authority is of the opinion –
(a)   that the officer should be dismissed or reduced in rank, it
shall forthwith direct accordingly;
(b)   that the officer does not deserve to be dismissed or
reduced in rank, but deserves some lesser punishment, it
may inflict upon the officer such lesser punishment as it
may deem fit; or
(c)   that the proceedings disclose sufficient grounds for
requiring him to retire in the public interest, it shall
recommend to the Government accordingly. The question of
pension will be dealt with under The Pensions Act.

The third and final provision is general order 36 which reads as follows:
A Disciplinary Authority may impose on an officer any one or any
combination of two or more of the following punishments:
(a)   warning;
(b)   reprimand;
(c)   fine;
(d)   forfeiture of salary;
(e)   stoppage of increment;
(f)   deferment of increment;
(g)   reduction of salary;
(h)   reduction in rank;
(i)   dismissal.

Returning to the narrative, the respondent, upon receiving the aforesaid letter, made a representation in writing as required by the letter of 31 January 1991. His letter is dated 7 February 1991. He did not write it himself. He enlisted the help of a petition writer to draft the letter. In his letter, the respondent denied that he was a drug addict. He asked for  [*289] another urine test to be conducted to prove his innocence. From the tenor of the letter, it appears that he had made a similar request upon an earlier occasion. He said that it was possible that the urine that has tested positive for drugs was not his sample. He referred to the fact that he had served the Government for 27 years without a blot upon his character.

About a month later, on 20 March 1991, the first appellant wrote a letter to the respondent dismissing him from service. The letter adverts to a meeting of the first appellant held on 21 March 1991, at which, after examining the charge and the respondent’s representation, it was decided that the respondent be dismissed from service. It is common ground that the respondent was not afforded an oral hearing. It is also common ground that the respondent was not afforded an opportunity to make a plea in mitigation upon the issue of punishment.

The respondent challenged his dismissal by way of a suit. He gave evidence at the trial of his action. His testimony was confined to the undisputed facts of the case. For the appellant’s, DW1, the Deputy Director of Health for the State of Pulau Pinang gave evidence. He confirmed that the only reason for the respondent’s dismissal was the fact that the urine test proved positive. This witness said that the first appellant was aware of the respondent’s stand that there could have been a mistake as to the identity of the urine sample and of the other factors mentioned by the respondent. The evidence of DW1 makes it patently clear that the first appellant was acting purely upon the results of the urine test. The learned judge, after a careful consideration of the evidence and the arguments before him, found for the respondent and held that his dismissal was null and void.

In the court below, the mainstay of the appellants’ case was that they were under no duty to afford the respondent an opportunity to mitigate before punishment was imposed. It was argued that the show cause letter dated 31 January 1991 was sufficient. In support of that argument, the appellants relied on certain observations (to which I will refer at some length in due course) made by Salleh Abas LP in Inspector General of Police v Alan Noor bin Kamat [1988] 1 MLJ 260. The learned judge treated these observations as mere obiter dicta. He examined the authorities and concluded that the observations of the learned Lord President did not represent the law upon the subject. He held that in the state of current authority, the appellants had not afforded procedural fairness to the respondent.

Before this court, the appellants criticized the learned judge’s approach on two grounds. First, the learned judge was wrong in treating the observations of the learned Lord President in the aforementioned authority as mere obiter dicta. They were part of the ratio decidendi. Second, even if the remarks of Salleh Abas LP were made obiter, they represent the law upon the subject at hand. These arguments necessitate an examination of the decision upon which the appellants place much reliance.

[*290]

In Inspector General of Police v Alan Noor bin Kamat, the facts were these. The plaintiff, a probationary inspector received a letter from the defendant asking him to show cause within 15 days why disciplinary action should not be taken against him in respect of three charges framed against him. The letter purported to be on the instructions of Deputy Inspector General of Police in exercise of disciplinary powers delegated to him by the Police Force Commission. The letter did not state that the defendant contemplated punishing the plaintiff by reducing his rank. The plaintiff made representations in writing in answer to the allegations raised against him. However, his reply was ten days out of time. More than a year later, the defendant imposed on the plaintiff the punishment of demotion to original rank on the first charge and fines for the second and third charges. The plaintiff challenged the defendant’s action. At first instance, Ajaib Singh J (as he then was), held for the plaintiff (see [1987] 1 CLJ 51). He did so upon the sole ground that the letter issued by the Deputy Inspector General of Police was a nullity. He advanced four reasons for his finding. They appear sufficiently from the following passages in his judgment (at pp 55-56):
Now surely the Deputy Inspector General of Police was in no position to
say that he was exercising ‘the disciplinary powers which have been
delegated to him by the Police Force Commission’. By the Instrument of
Delegation (PU (B) 548), the Police Force Commission delegated its
disciplinary powers to the Inspector General of Police to initiate
disciplinary action with a view to imposing the punishment of dismissal
or reduction in rank of certain senior police officers. This delegated
power is personal to the Inspector General of Police and he cannot in
turn delegate it further to anyone else — delegatus non potest
delegare.
The letter of 14 May 1980 set out three charges of indiscipline against
the plaintiff. But there is no provision in regulation 30 for any
charges to be preferred.
Under regulation 30(2) the Inspector General of Police had to give
grounds on which it was proposed to dismiss or reduce the plaintiff in
rank and call upon him to state in writing within a period of not less
than 14 days a representation containing grounds upon which he relied
to exculpate himself. The letter of 14 May 1980 set out no grounds on
which it was proposed to dismiss or reduce the plaintiff in rank as
required but set out three charges which were not required.
Another flaw in the letter of 14 May 1980 is that there is no mention
of the proposed punishment. Under regulation 30(2) it is incumbent upon
the disciplinary authority to state that it is proposed to either
dismiss the officer or reduce him in rank. This omission was clearly in
breach of regulation 30(2) which rendered the letter of 14 May 1980
nugatory.

Having found the letter in question to be invalid, he however, went on to say as follows (at p 56):
The plaintiff sent a reply to the Deputy Inspector General of Police on
7 June 1980 giving his explanations on the three charges. After
considering these explanations and having found that the plaintiff had
failed to exculpate himself, it was incumbent upon the
Inspector-General of Police thereafter to give the
[*291]
plaintiff an opportunity to make a plea in mitigation on punishment.
This right of the plaintiff to be heard in mitigation is implied in
regulation 27 of the general orders and in art 135(2) of the Federal
Constitution for otherwise it cannot be said that the plaintiff had
been given a reasonable opportunity of being heard. He had to be
heard throughout the proceedings from the beginning to the end. Isn’t
it a fair and reasonable expectation of any person condemned for a
wrong that he would be heard in mitigation before any punishment is
imposed on him? (Emphasis added.)

The defendant’s appeal to the Supreme Court failed. Salleh Abas LP, who delivered the judgment of the Supreme Court (see [1988] 1 MLJ 260 at p 261 of the report), identified the issues that arose for decision in the appeal:
Two issues are involved in the application of general order 30 to this
case, namely: (1) who is the proper Disciplinary Authority; and (2)
having regard to the punishment of reduction in rank imposed on the
respondent, whether the show cause letter which did not direct the
respondent’s attention to the possibility of such punishment has
sufficiently complied with the requirements of para (2) of general
order 30. Either of these issues is vital to the case.

He then went on to say as follows:
As regards the first issue, we are of the view that the learned judge
was correct. The respondent was at the material time a probationary
police inspector and as such, according to the instrument of delegation
of power by the Police Service Commission dated 18 February 1971 (PU
(B) 548/75), the IGP was the proper Disciplinary Authority, he being
vested with the delegated power to take disciplinary proceedings
against ‘all senior police officers of the rank of probationary
inspector up to and including chief inspector’ (vide item 15 of the
Instrument of Delegations). But what happened in this case was that the
show cause letter dated 14 May 1980, which was signed by Penolong
Pengarah Pengurusan (Tatatertib) on behalf of the IGP, had clearly
stated that the letter was sent on the direction not of the IGP but of
the Deputy IGP. Although the letter dated 21 August 1981 conveying the
punishment appeared to have been written on the instruction of the IGP,
in our judgment this does not satisfy the requirement of the general
order 30. The authority informing the punishment must be the same
authority that instructs the proceeding leading to the punishment. Oral
evidence was led to the effect that the IGP gave his instructions to
his deputy to initiate the impugned disciplinary proceeding. In our
view, such evidence should not be admitted and if admitted should not
be acted upon because it is clear that under s 91 of the Evidence Act
no evidence can be given in proof of any matter which is required by
law to be reduced to a form of a document and s 92 prohibits the giving
of oral evidence to contradict or vary or explain the terms of such
document. A show cause letter has to be in the form of a document
because para (2) of general order 30 required a Disciplinary Authority
to send to the officer who is subject to a disciplinary proceeding ‘a
statement in writing, prepared, if necessary, with the aid of the Legal
Department’. Since the letter to show cause clearly said that the
Deputy IGP has caused the letter to be sent, on that ground alone the
appeal should be dismissed. (Emphasis added.)

[*292]

It is plain from the concluding words in the foregoing passage (to which we have lent emphasis) that the defendant’s appeal could have been disposed of upon the first issue. However, the learned Lord President proceeded to deal with the other issue as well. He said (at pp 261-262):
As regards the second issue, ie whether or not there has been
sufficient compliance of para (2) of general order 30, our views are as
follows.
Reduction in rank and dismissal are the two most severe punishments
that can be imposed upon a civil servant guilty of misconduct. For this
reason, the proceedings with a view to dismissal or reduction in rank
have to be slightly different in that the show cause letter must bring
to the attention of the civil servant concerned of the contemplated
punishments to make him appreciate the gravity of the situation and
thus enable him to give a satisfactory explanation as best as he could.
This is clear from the wording contained in para (2) of general order
30, ie ‘a statement in writing, prepared, if necessary, with the aid of
the Legal Department, of the ground or grounds on which it is proposed
to dismiss the officer or reduce him in rank …’. This phraseology ‘of
the ground or grounds on which it is proposed to dismiss the officer or
reduce him in rank’, however, does not appear in general order 29 which
deals with disciplinary proceedings not meriting punishment of
dismissal or reduction in rank.
Looking at the show cause letter dated 14 May 1980, we see nothing in
it which shows that the Disciplinary Authority intended or contemplated
the punishment of reduction in rank. It is not therefore surprising for
the respondent to reply to the allegation of misconduct without
assistance of counsel which he said in his evidence he would have done
if he had known the gravity of the situation he had to face.
Furthermore, the time lapse between his reply and the punishment
clearly gave him hope that whatever punishment to be imposed on him
will not be so serious as the one actually imposed. In our view, the
Disciplinary Authority here made a fatal mistake which rendered the
disciplinary proceedings null and void. (Emphasis added.)

The learned Lord President, having dealt with the two issues that arose for decision went on to criticise the observation of Ajaib Singh J, in the passage earlier quoted. He said (at p 262):
As it stands, this passage appears to be misleading. This passage
should be read in the light of the factual situation of this case,
wherein the show cause letter dated 14 May 1980 was completely silent
as to the contemplated punishment to be imposed at the end of the
disciplinary proceedings. Therefore, in order to ensure that the
respondent understood and appreciated the seriousness of the
proceedings he was facing, the learned trial judge was right in
insisting that another chance must be given to him, which he called a
plea of mitigation. If, however, the show cause letter had included
the proposed punishment, for example, by the inclusion of such
statement as ‘This proceeding is taken against you with a view to
dismissal or reduction in rank …’ or ‘This proceeding is taken under
general order 30 with a view to dismissal or reduction in rank’ …, or
such other phraseology as would give the effect of making the
respondent understand the nature of the proceedings and what they would
lead to, there is no necessity for the appellants to give another
opportunity of being heard before the punishment is imposed. (Emphasis
added.)

[*293]

Having regard to the appellants’ arguments, it is necessary now to see if, on an application of established tests, whether the foregoing remarks form part of the ratio decidendi or are mere obiter dictum.

In Co-operative Central Bank Ltd v Feyen Development Sdn Bhd [1997] 2 MLJ 829 at p 836, Edgar Joseph Jr FCJ, explained the distinction between these two parts of a judgment as follows:
[O]biter dictum is a mere chance remark by the court and is used in
contradistinction to ratio decidendi — the rule of law for which a
case is authority.

An authoritative description of what constitutes the ratio decidendi of a case was rendered by Schreiner JA, in Pretoria City Council v Levison(1949) 3 SA 405 at p 417:
As I understand the ordinary usage in this connection, where a single
judgment is in question, the reasons given in the judgment, properly
interpreted, do constitute the ratio decidendi, originating or
following a legal rule, provided: (a) that they do not appear from the
judgment itself to have been merely subsidiary reasons for following
the main principle or principles; (b) that they were not merely a
course of reasoning on the facts; and (c) (this may cover (a)) that
they were necessary for the decision, not in the sense that it could
not have been reached along other lines, but in the sense that along
the lines actually followed in the judgment the result would have been
different but for the reasons.

Schreiner JA, had in mind a single judgment of a court when he suggested the foregoing test. This court is also concerned only with a single judgment of the Supreme Court. Hence, I consider it quite safe to apply the approach suggested by Schreiner JA, when interpreting the judgment of the Supreme Court in Inspector General of Police v Alan Noor bin Kamat.

Applying that test, the finding by the Supreme Court on the first of the two issues that arose for its decision is certainly ratio decidendi. The decision upon the second issue may also be part of the ratio. I say ‘may’ advisedly, because it was not strictly necessary for the court to have entered upon the second issue in light of the learned Lord President’s concluding remarks on the first issue. Nevertheless, I am, ex abundanti cautela, prepared to accept the finding upon the second issue also as part of the ratio on the basis that a judgment may have more than one ratio. However, I am unable, on a proper application of the test, accept the remark of the learned Lord President that ‘there is no necessity for the appellants to give another opportunity of being heard before the punishment is imposed’ as forming part of the ratio in Alan Noor‘s case.

I am therefore satisfied that both Ajaib Singh J’s remark at first instance and the Supreme Court’s comment upon it on the appeal in Inspector General of Police v Alan Noor bin Kamat are both merely obiter dicta as they were unnecessary for the actual decision in that case. It follows that I am in agreement with the learned trial judge in his interpretation of that case. I must, for that reason, reject the first submission  [*294] advanced by the appellants in criticism of the learned judge this part of his judgment.

That brings me to the appellants’ second argument. What is urged upon this court is the proposition that in disciplinary proceedings brought against a member of the public service, there is no separate right (or the legitimate expectation of a right) to make representations upon the question of the punishment that ought to be meted out to him.

To recapitulate, in Inspector General of Police v Alan Noor bin Kamat, Ajaib Singh J, at first instance, took the view that the disciplinary process involved two separate exercises, the first a finding as to guilt and the second as to punishment. However, the Supreme Court was of opinion that both guilt and punishment are to be considered in one composite exercise. That, in essence, is the difference in the approach.

With much respect, I am unable to accept the view subscribed to by the Supreme Court. In my judgment, save in those cases falling under Part III of the general orders, there are two separate and distinct steps in the public service disciplinary process. The first step is for the disciplinary authority to decide upon the issue of guilt or innocence. If the decision is in favour of the employee, that is the end of the matter. But if the relevant authority finds the public servant guilty, then, and then only, does the question of punishment arise. And as may be seen from general order 36, that there is a wide choice in the type of punishment that may be meted out. As may be seen from general order 36, it ranges from a mere warning to the ultimate punishment of dismissal.

Now, it cannot be gainsaid that any sort of punishment imposed upon a public servant has serious consequences. It carries with it a stigma. It tarnishes reputation. The authorities are now well settled that the punishment of dismissal deprives a person of his livelihood and therefore of his ‘life’ within the meaning of that expression in art 5(1) of the Federal Constitution. See R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145; Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261; Hong Leong Equipment Sdn Bhd v Liew Fook Chuan [1996] 1 MLJ 481.

Similarly, when a person is derived of his reputation, it would in my judgment, amount to a deprivation of ‘life’ within art 5(1) of the Federal Constitution. The right to reputation is part and parcel of human dignity. And it is the fundamental right of every person within the shores of Malaysia to live with common human dignity. I derive support for this view from the decisions of the Indian Supreme Court in two cases. The first is Francis Coralie v Union of India AIR 1981 SC 746. In that case, Bhagwati J (later CJ), when interpreting the expression ‘life’ in art 21 of the Indian Constitution (the equipollent of our art 5(1)) said (at p 752):
While arriving at the proper meaning and content of the right to life,
we must remember that it is a constitutional provision which we are
expounding and moreover it is a provision enacting a fundamental right
and the attempt of the court should always be to expand the reach and
ambit of the fundamental right rather than to attenuate its meaning and
content. The luminous  [*295] guideline in the interpretation of a
constitutional provision is provided by the Supreme Court of United
States in Weems v US [1909] 54 L Fd 793 (801):
‘Legislation, both statutory and constitutional is enacted, it is
true, from an experience of evils, but its general language
should not, therefore, be necessarily confined to the form that
evil had therefore taken. Time works changes, brings into
existence new conditions and purposes. Therefore, a principle, to
be vital, must be capable of wider application than the mischief
which gave it birth. This is peculiarly true of constitutions.
They are not ephemeral enactments designed to meet passing
occasions. They are, to use the words of Chief Justice Marshall, “
designed to approach immortality as nearly as human institutions
can approach it”. The future is their care and provisions for
good and bad tendencies of which no prophecy can be made. In the
application of a constitution, therefore, our contemplation
cannot be only of what has been, but of what may be. Under any
other rule, a constitution would indeed be as easy of application
as it would be deficient in efficacy and power. Its general
principles would have little value, and be converted by precedent
into impotent and lifeless formulas. Rights declared in the words
might be lost in reality. And this has been recognized. The
meaning and. vitality of the Constitution have developed against
narrow and restrictive construction.’
This principle of interpretation which requires that a constitutional
provision must be construed, not in a narrow and constricted sense,
but, in a wide and liberal manner so as to anticipate and take account
of changing conditions and purposes so that the constitutional
provision does not get atrophied or fossilised but remains flexible
enough to meet the newly emerging problems and challenges applies with
greater force in relation to a fundamental right enacted by the
Constitution. The fundamental right to life which is the most precious
human right and which forms the arc of all other rights must therefore
be interpreted in a broad and expansive spirit so as to invest it with
significance and vitality which may endure for years to come and
enhance the dignity of the individual and the worth of the human person.

In a later passage in his judgment (at p 753), Bhagwati J added:
But the question which arises is whether the right to life is limited
only to protection of limb or faculty or does it go further and embrace
something more. We think that the right to life includes the right to
live with human dignity and all that goes along with it namely, the
bare necessaries of life such as adequate nutrition, clothing and
shelter over the head and facilities for reading, writing and
expressing oneself in diverse forms, freely moving about and mixing and
commingling with fellow human beings.

The second authority is Board of Trustees of the Port of Bombay v Dilipkumar AIR 1983 SC 114, where Desai and Misra JJ, when dealing with a case of disciplinary inquiry said (at p 114):
And this view was taken as flowing from art 21 which mandates that no
one shall be deprived of his life or liberty except in accordance with
the procedure prescribed by law. The expression ‘life’ does not merely
connote animal existence or a continued drudgery through life. The
expression ‘life’ has a much wider meaning. Where therefore the
outcome of a departmental enquiry is likely to adversely affect
reputation or livelihood of a person … the same can be put in
jeopardy only by law which inheres fair procedures. (Emphasis added.)

[*296]

I would also mention in passing that the Supreme of India in Sowmithri Vishnu v Union of India AIR 1985 SC 1618 at pp 1621-1622, appears to have accepted an argument that the expression ‘life’ in art 21 of the Indian Constitution includes a person’s reputation.

The combined effect of arts 5(1) and 8(1) of the Federal Constitution is, in my judgment, to demand fairness both in procedure and in substance whenever a public law decision has an adverse effect on any of the facets of a person’s life. See R Rama Chandran v The Industrial Court of Malaysia & Anor; Kumpulan Perangsang Selangor Bhd v Zaid bin Haji Mohd Noh [1997] 1 MLJ 789. Among these facets are a person’s livelihood and his reputation.

Procedural fairness demands not only the right in a public servant to make representations on the truth of the charges framed against him. It includes the right, after a finding of guilt is made against him, to make representations on the question of punishment. That this must be the case may be seen by examining the disciplinary process itself.

In my view, the obiter dictum of the Supreme Court in Inspector General of Police v Alan Noor bin Kamat is plainly wrong. It was expressed without the benefit of a mature argument upon the combined effect of arts 5(1) and 8(1) of the Federal Constitution. Neither did it have the benefit of the views expressed in several cases of high authority, including the decision of the Privy Council in High Commissioner for India and High Commissioner for Pakistan v Lall LR 75 IA 225. In that case, the Board dealt with the identical issue that has arisen for consideration in the present appeal. The relevant provision in that case was s 240(3) of the Government of India Act 1935. That subsection, which dealt with, inter alia, the dismissal of public servants read as follows:
(3)   No such person as aforesaid shall be dismissed or reduced in rank
until he has been given a reasonable opportunity of showing cause
against the action proposed to be taken in regard to him:
Provided that this subsection shall not apply –
(a)   where a person is dismissed or reduced in rank on the
ground of conduct which has led to his conviction on a
criminal charge. …

The respondent, a member of the Indian civil service, had been dismissed on charges, which included an allegation of nepotism, without having been given an opportunity to show cause against the making of the order of dismissal. The Privy Council upheld the decision of the Federal Court striking down the order of dismissal. Lord Thankerton, in the course of delivering the advice of the Board, made the following observation (at p 242 of the report):
Their Lordships would only add that they see no difficulty in the
statutory opportunity being reasonably afforded at more than one stage.
If the civil servant has been through an inquiry under r 55, it
would not be reasonable that he should ask for a repetition of that
stage, if duly carried out, but that would not exhaust his statutory
right, and he would still be entitled to represent against the
punishment proposed as the result of the findings of the inquiry.
(Emphasis added.)

[*297]

The learned judge referred to the foregoing passage in his judgment. He relied upon it in preference to the obiter dicta expressed in Alan Noor‘s case. He also based his decision upon the judgment of this court in Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor. I think that the learned judge’s approach was entirely in consonance with the doctrine of stare decisis and with judicial discipline.

The position is made clearer when one compares the present case to one falling under Part III of the general orders. This is where a member of the public service is either convicted of a criminal offence or an order of detention, restricted residence, supervision, banishment or deportation is made against him. In all such cases, there is no second right to representation available to a public servant on the issue of punishment because O 35 expressly excludes any such right. And this is entirely consonant with proviso (a) and (d) to art 135(2) of the Federal Constitution.

There is one final point in this appeal that I think I ought to mention. It has to do with the respondent’s argument in the court below that he had not been afforded an oral hearing. Now, it is true, that there are several decisions of our courts that hold that an oral hearing is not the sine qua non of procedural fairness. See, Najar Singh v Government of Malaysia[1976] 1 MLJ 203; Ghazi bin Mohd Sawi v Mohd Haniff bin Omar & Anor [1994] 2 MLJ 114. However, in Raja Abdul Malek v Setiausaha Suruhanjaya Pasukan Polis & Ors [1995] 1 MLJ 308, I expressed the view that cases may arise where the failure to afford an oral hearing may result in the decision arrived at being declared a nullity. That is a view to which I continue to adhere. Indeed, in Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor, the Federal Court recognized the need to have an oral hearing in planning cases. See the judgment of Edgar Joseph Jr FCJ at pp 60-61 of the report.

My limited research reveals that English, Indian and Australian jurisprudence upon the subject is akin to our own. It suffices to refer to just one authority from each of these jurisdictions.

In R v Army Board; ex p Anderson [1991] 3 All ER 375, Taylor LJ (later Lord Chief Justice) expressed the principle in the following terms (at p 387):
The hearing does not necessarily have to be an oral hearing in all
cases. There is ample authority that decision-making bodies other than
courts and bodies whose procedures are laid down by statute are masters
of their own procedure. Provided that they achieve the degree of
fairness appropriate to their task, it is for them to decide how they
will proceed and there is no rule that fairness always requires an oral
hearing: see Local Government Board v Arlidge[1915] AC 120 at pp
132-133, [1914-15] All ER Rep 1 at p 7, Selvarajan v Race Relations
Board [1976] 1 All ER 12 at p 19, [1975] 1 WLR 1686 at p 1694 and
R v Immigration Appeal Tribunal, ex p Jones [1985] 2 All ER 65 at
p 68, [1988] 1 WLR 477 at p 481. Whether an oral hearing is
necessary will depend upon the subject matter and circumstances of the
particular case and upon the nature of the decision to be made. It
will also depend upon whether there are substantial issues of fact
which cannot be satisfactorily resolved on the available written
evidence. This does not mean that, whenever there is a conflict of
evidence in  [*298] the statements taken, an oral hearing must be
held to resolve it. Sometimes such a conflict can be resolved merely by
the inherent unlikelihood of one version or the other. Sometimes the
conflict is not central to the issue for determination and would not
justify an oral hearing. Even when such a hearing is necessary, it may
only require one or two witnesses to be called and cross-examined.
(Emphasis added.)

Similarly, the Supreme Court of India in Travancore Rayons v Union of India AIR 1971 SC 682, while affirming the general rule, recognised that there may be cases where an oral hearing may be called for in the interests of justice. The court was of the view that an oral hearing would be warranted in cases involving complicated questions of fact.

I pause to say that the reference in Ex parte Anderson to ‘substantial issues of fact’ and in Travancore Rayons v Union of India to ‘complicated questions of fact’ is not to be read restrictively. They are merely descriptive of one of the many types of situations in which procedural fairness would demand an oral hearing. It is to be emphasised that the categories of cases where procedural fairness demands an oral hearing are not closed.

In Australia, the point was considered recently in Jorgensen v Australian Securities & Investment Commission [1999] FCA 356. In that case Heerey J said:
The rule audi alterem partem, literally ‘to hear the other side’, need
not necessarily mean an oral hearing. In Chen v Minister for
Immigration (1994) 48 FCR 591 a Full Court of this court (Black CJ,
Lee and Heerey JJ) held that an applicant for refugee status seeking
departmental review of a primary decision to refuse status was not
necessarily entitled to an oral hearing. The court said (at p 597):
‘It is beyond argument that the rules of natural justice do not
mandate in all cases an oral hearing for the person affected.
This was recognized by the House of Lords in Local Government
Board v Arlidge[1915] AC 120 at p 133. There have been many
developments of the law in this area since Arlidge but it remains
clear that an oral hearing is not necessary in every case. Thus,
in Heatley v Tasmanian Racing and Gaming Commission (1977)
137 CLR 487, where the High Court was concerned with a statutory
power conferred on the respondent to warn off persons from
racecourses, Aikin J said (at p 516):
“Fairness requires that the person affected should, save in
an emergency, be given notice by the Commission of its
intention to issue a warning-off notice and of the grounds
for that action and should be afforded an opportunity to
make representations to the commission on his own behalf,
which it must consider before taking action. A notice
effective for an indefinite period should not be issued
without compliance with at least those procedural
requirements. I do not think that fairness requires in this
context an oral hearing though in some circumstances the
Commission may well find that it cannot resolve
inconsistencies between its information and written
submissions from the person concerned without such a
hearing. It is however for the Commission itself to devise
its own procedures in the light of its obligation to act
fairly.”

[*299]

Ought the respondent in the present case to have been given an oral hearing? I think he ought. There is a combination of circumstances in the present instance that made an oral hearing essential.

The sole ground upon which the appellants acted was the analysis report. DW1 testified to this fact in his evidence. However, the respondent challenged the findings of the analyst principally on the ground that he was not a drug addict. He also put in issue the identity of the urine sample that was sent for analysis and called for a fresh test The respondent’s challenge cannot be rejected out of hand because of the long delay between the taking of the sample and the issuance of the show cause letter. Added to this is the fact that throughout the respondent’s long term of service, no complaint of misconduct had ever been made against him. This was therefore a case of alleged misconduct that was manifestly unsuitable for resolution purely on the basis of written representations. In my view, the facts here demanded an oral hearing. The appellant to accede to the respondent’s request for such a hearing, on the facts of the instant case, constitutes a failure to accord procedural fairness. I would, therefore, uphold the judgment of the learned judge on this additional ground.

I have, since writing this judgment, read the draft judgment of my learned sister Siti Norma Yaakob JCA. I entirely concur with her views.

For the reasons already given, the appeal was dismissed without calling upon counsel for the respondent. The orders made by the learned judge were affirmed. There was no order as to costs made against the appellants.

Siti Norma Yaakob JCA: This appeal came to us by way of a judicial review and it stems from a wrongful dismissal suit brought by the respondent against the appellants. The respondent’s claim for a declaration that his dismissal as a hospital attendant at the General Hospital Penang, was null and void, was allowed with costs by the High Court at Penang which also declared that the respondent is still a hospital attendant and is entitled to all his salaries and benefits due to him as such (see [1998] 3 MLJ 676).

The facts of this appeal were in no way disputed. The second appellant employed the respondent as a hospital attendant and at all material times, the respondent worked at the General Hospital, Penang. On 5 February 1991, the respondent received a show cause letter dated 31 January 1991 from the first appellant, asking him why disciplinary action under the Public Officers (Conduct and Discipline) (Chapter ‘D’) General Orders 1980 (‘the Code’) should not be taken against him with a view to his dismissal or demotion on the ground that a sample urine taken from him on 5 May 1990, was tested positive for morphine. He was charged that as a drug addict, his conduct would discredit the public service and bring it into disrepute, a breach of O 4(2)(d) of the Code, the punishment for which is set out in O 36 of the Code. The respondent was given 14 days from the date of the receipt of the letter to make his written representations to exculpate himself.

[*300]

The respondent did so in his letter dated 7 February 1991, wherein he:
(1)   denied that he was a drug addict;
(2)   be given another opportunity to have his urine tested;
(3)   raised the possibility that the sample urine tested on 5 May 1990 was
not his but might belong to some other person;
(4)   had no intention to taint his long record of service; and
(5)   had never been subjected to any form of disciplinary action during his
27 years service with the second appellant.

On 20 March 1991, the first appellant informed the respondent that after considering the charge and his reply to it, it was decided that he be dismissed from his present employment as a hospital attendant with effect from 20 March 1991, under O 36(i) of the Code. The respondent was also informed that he had the right to appeal to the Disciplinary Appeal Board against the punishment through his Head of Department within 14 days of the receipt of the letter.

The respondent did so and in his letter dated 26 March 1991, he set out 11 reasons why the charge and the punishment imposed on him should be set aside or reviewed as he maintained that he was not a drug addict nor was he in any way involved in the use of drugs.

The Disciplinary Appeal Board was not impressed by the reasons given by the respondent, rejected his appeal and confirmed the punishment imposed by the first appellant, a decision that was made known to the respondent through the first appellant’s letter dated 4 July 1991. This led to the respondent filing a writ action on 20 November 1991, against the appellants challenging the validity of his dismissal and praying for the declaratory reliefs that I had mentioned earlier as well as consequential reliefs for an inquiry to determine all the benefits due to him, damages, interests and costs.

In the court below, three issues were raised. Two were decided in favour of the appellants and one against. It was on the ground of the latter unfavourable finding that judgment was entered against the appellants and before us that same issue was taken and was the only issue raised. It related to whether there had been procedural unfairness when the respondent was not given the opportunity to mitigate before the first appellant decided to terminate his services as a hospital attendant especially when more than one punishment had been held out as a possible punishment for the charge that he had been found guilty of. Clearly what was being questioned was the decision making process of the first appellant and not the decision itself.

In rebutting the respondent’s contention that there had been procedural unfairness, the appellants contended that the disciplinary proceedings before the first appellant were conducted pursuant to the provisions of O 26(1), (2) and (4) of the Code and since there is no provision as to the right to be heard on the question of punishment, the  [*301] respondent had no cause to complain that he had been denied of such a right. Moreover in the letter to show cause, not only were particulars of the alleged misconduct set out but that the respondent was also put on notice as to the type of punishment that would be meted out to him and in making his defence to the specific charge, he had every opportunity to mitigate as well but he chose not to do so. For this contention, the appellants relied on the Supreme Court decision of Inspector General of Police & Anor v Alan Noor bin Kamat [1988] 1 MLJ 260, where the following observation was made (at p 262):
If however, the show cause letter had included the proposed punishment,
for example, by the inclusion of such statement as ‘This proceeding is
taken against you with a view of dismissal or reduction in rank …’ or
‘This proceeding is taken under general order 30 with a view of
dismissal or reduction in rank …’, or such other phraseology as would
give the effect of making the respondent understand the nature of the
proceedings and what they would lead to, there is no necessity for the
appellants to give another opportunity of being heard before the
punishment is imposed.

Like the court below, I was not persuaded to adopt the aforesaid observation as such observation was made obiter.

Part II of the Code sets out the procedure under which disciplinary proceedings can be commenced against an officer in the public service. General Order 26(1), (2) and (4) under which disciplinary proceedings were taken against the respondent contain the following provisions:
(1)   Where it is represented to, or is found by, the Appropriate
Disciplinary Authority that an officer is guilty of
unsatisfactory work or misconduct and such work or misconduct, in
the opinion or the Disciplinary Authority, merits dismissal or
reduction in rank, the provisions of the following paragraphs
shall apply.
(2)   The Appropriate Disciplinary Authority shall, after considering
all the available information in its possession that there is a
prima facie case for dismissal or reduction in rank, cause to be
sent to the officer a statement in writing, prepared, if
necessary, with the aid of the Legal Department, of the ground or
grounds on which it is proposed to dismiss the officer or reduce
him in rank and shall call upon him to state in writing within a
period or not less than fourteen days from the date of receipt of
the letter a representation containing grounds upon which he
relies to exculpate himself.
(3)   …
(4)   If the officer does not furnish any representation within the
specified time, or if he furnishes a representation which falls
to exculpate himself to the satisfaction of the Appropriate
Disciplinary Authority, it shall then proceed to consider and
decide on the dismissal or reduction in rank of the officer.

Clearly there were two stages in proceedings before the first appellant. The first was the determination as to whether the alleged misconduct had been made out after considering all the facts of the allegation and the grounds on which the respondent relied to exculpate himself. Once the misconduct had  [*302] been established, the second stage was to determine the appropriate punishment to commensurate with the misconduct committed by the respondent. It was at this second stage of the proceedings that the respondent maintained that he was entitled to be heard as to his plea in mitigation. I agreed with him for the following reasons.

The show cause letter mentioned more than one punishment if he was found guilty of the misconduct preferred against him. In the first part of the letter, two alternative punishments were identified, namely dismissal or reduction in rank. After particularizing the charge or misconduct against him, the letter went further to state that his conduct as a drug addict was a breach of O 4(2)(d) of the Code, the punishment for which is provided by O 36, which sets out nine different punishments as follows:
(a)   warning;
(b)   reprimand;
(c)   fine;
(d)   forfeiture of salary;
(e)   stoppage of increment;
(f)   deferment of salary;
(g)   reduction of salary;
(h)   reduction in rank;
(i)   dismissal.

The Code gives the first appellant the power to impose any one or the aforesaid punishments or a combination of two or more.

From the language of the show cause letter and in the light of the alternative punishments that might be imposed on the respondent, it was my considered opinion that the respondent should have been given the opportunity to plead in mitigation before any punishment was meted against him. This reasoning I say runs in line with the provisions of O 23 which states that in all disciplinary proceedings under Part II of the Code no officer shall be dismissed or reduced in rank unless he has been afforded a reasonable opportunity of being heard. My reasoning, too, harmonises with the provisions of art 135(2) of the Federal Constitution which provides that no member of the public service ‘ shall be dismissed or reduced in rank without being given reasonable opportunity or being heard‘.

In the circumstances of this appeal, I say that the right to be heard extended not only to the first stage of the proceedings before the first appellant but also to the second stage before punishment was passed. In this instance the first appellant accorded the respondent the opportunity to be heard in answer to the charge but had denied his right to plead in mitigation before dismissing him. Since dismissal has been identified by the first appellant to be one of two punishments that could be imposed on the respondent and I am mindful that dismissal is the most extreme punishment that could befall a public servant, justice and fair play dictate that the right to plead in mitigation should have been accorded to the respondent although O 26 of the Code under which these proceedings were brought is  [*303] silent on this score. Under these circumstances, I say that the proceedings before the first appellant were flawed in that there had been procedural unfairness and as such cannot be sustained. For this very reason, I had dismissed the appeal, confirmed the orders of the learned trial judge but made no order as to costs as counsel for the respondent was not invited to respond to the appellants’ submission.

Mokhtar Sidin JCA: I have the opportunity of reading the judgment of my learned brother Gopal Sri Ram JCA and the judgment of my learned sister Siti Norma Yaakob JCA. I am in total agreement with the reasonings and the conclusions in both judgments which in my opinion have covered all the points. With that I have nothing further to add.

Appeal dismissed.

LOAD-DATE: September 22, 2003