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BREACH OF NATURAL JUSTICE: UTRA BADI A/L K PERUMAL V LEMBAGA TATATERTIB PERKHIDMATAN AWAM & ANOR [1998] 3 MLJ 676 CIVIL SUIT NO 22-322 OF 1991 HIGH COURT (PENANG)
The Malayan Law Journal
UTRA BADI A/L K PERUMAL V LEMBAGA TATATERTIB PERKHIDMATAN AWAM & ANOR
[1998] 3 MLJ 676
CIVIL SUIT NO 22-322 OF 1991
HIGH COURT (PENANG)
DECIDED-DATE-1: 30 MAY 1996
VINCENT NG J
CATCHWORDS:
Administrative Law – Termination of service of member of public service – Whether wording in show cause letter which contained two alternative punishments nullified the charge for want of clarity – Whether show cause letter should state which of the alternative punishments is to be used – Public Officers (Conduct and Discipline) (Chapter D) General Order 1980 general order 26
Administrative Law – Rights and liabilities of public servants – Right to be heard – Whether extraneous matters were considered – Whether plaintiff was given reasonable opportunity to be heard on other relevant information
Administrative Law – Right to mitigation – Dismissal or reduction in rank of public servant – Whether public servant ought to be given reasonable opportunity of being heard in mitigation before punishment is imposed – Federal Constitution art 135(2) – Public Officers (Conduct and Discipline) (Chapter D) General Order 1980 general order 23
HEADNOTES:
The plaintiff, a hospital attendant, was an employee of the second defendant. A sample of urine taken from him was tested positive for morphine. The first defendant requested the plaintiff to show cause why disciplinary action should not be taken against him on the ground that he was a drug addict. The charge was made under general order 26 of the Public Officers (Conduct and Discipline) (Chapter D) General Order 1980 which contained two alternative punishments against him, namely to dismiss or to reduce in rank. The plaintiff gave his explanation on the charge proffered against him. The first defendant dismissed the plaintiff.
The plaintiff’s appeal to the Appeal Board was rejected. The plaintiff applied for a declaration that his purported dismissal was null and void. There were three issues before the court, ie that: (i) the wording in the show cause letter which contained two alternative punishments nullified the charge for want of clarity; (ii) the first defendant has taken into account other material information which had never been put to the plaintiff, and the plaintiff was not given a reasonable opportunity to be heard on the other relevant information that appeared to have been considered in the decision making process which led to his dismissal; and (iii) that the first defendant has failed to give the plaintiff a reasonable opportunity to mitigate.
Held, allowing the plaintiff’s claim with costs:
(1) There is nothing wrong with the way the charge is worded considering
that it is in direct compliance with general order 26 and it contained all
the necessary particulars to enable the plaintiff to prepare his written
representaton in answer thereto, though, an outline of the charge would
usually suffice (see p 684D-E).
[*677] (2) There were no extraneous matters considered other than the fact that
the plaintiff’s test was tested positive for morphine. The explanation in the
first defendant’s letter that other relevant information was considered
actually referred to what the plaintiff had written in his reply to the show
cause letter and nothing more (see p 685F-G).
(3) It would be unjust to deny the civil servant an oportunity to be heard
in mitigation before punishment is imposed on him, as the punishment itself
involves a further decision-making process.The right of the plaintiff to be
heard in mitigation is implicitly encompassed in general order 23 of the
General Orders and in art 135(2) of the Federal Constitution. Consequently,
as it is common ground that the first defendant had not given the plaintiff
any opportunity to be heard in mitigation before punishment, the decision
making process pertaining thereto is fatally flawed (see pp 689D and 691A-C).
(4) In the instant case, it is beyond the ambit of a judicial review for
the court to touch on the decision itself and consider whether, if the
plaintiff was rightly found to be a drug addict he could be allowed to
continue to work in an institution such as a hospital. What has to be decided
within the court’s purview is that due to non-compliance of general order 23
of the General Orders and of art 135(2) of the Federal Constitution in the
manner in which the first defendant had made their decision on the punishment
imposed, the termination of the plaintiff’s services had been rendered
nugatory, null and void and of no effect (see pp 691H-I and 692B).
[Bahasa Malaysia summary
Plaintif, seorang atendan hospital, adalah pekerja defendan kedua. Contoh air kencing yang diambil daripadanya telah diuji positif mengandungi morfin. Defendan pertama meminta plaintif menunjuk sebab mengapa tindakan disiplin tidak patut diambil terhadapnya atas alasan bahawa dia adalah penagih dadah. Pertuduhan dibuat di bawah perintah am 26 Perintah-Perintah Am Pegawai Awam (Kelakuan dan Tatatertib) (Bab D) 1980 yang mengandungi dua hukuman alternatif terhadapnya, iaitu untuk dipecat atau diturunkan pangkat. Plaintif memberikan penerangan atas pertuduhan ke atasnya. Defendan pertama memecat plaintif.
Rayuan plaintif kepada Lembaga Rayuan telah ditolak. Plaintif memohon satu deklarasi bahawa pemecatannya adalah batal dan tak sah. Terdapat tiga isu di hadapan mahkamah, iaitu bahawa: (i) perkataan dalam surat tunjuk sebab yang mengandungi dua hukuman alternatif membatalkan pertuduhan kerana tidak jelas; (ii) defendan pertama telah mengambil kira maklumat material yang lain yang tidak pernah ditunjukkan kepada plaintif, dan plaintif tidak diberikan peluang yang munasabah untuk dibicarakan atas maklumat lain yang relevan yang telah diambil kira dalam proses membuat [*678] keputusan yang membawa kepada pemecatannya; dan (iii) defendan pertama telah gagal untuk memberikan plaintif peluang yang munasabah untuk pengurangan.
Diputuskan, membenarkan tuntutan plaintif dengan kos:
(1) Tidak ada apa yang salah dengan cara pertuduhan itu dibuat mengambil
kira bahawa ia mematuhi perintah am 26 dan ia mengandungi semua butir-butir
yang diperlukan untuk membolehkan plaintif menyediakan representasi bertulis
untuk menjawabnya, walaupun garis kasar pertuduhan biasanya mencukupi (lihat
ms 684D-E).
(2) Tidak ada perkara yang tidak relevan diambil kira melainkan fakta
bahawa ujian plaintif telah diuji positif mengandungi morfin. Penerangan
dalam surat defendan pertama bahawa maklumat lain yang relevan telah diambil
kira sebenarnya merujuk kepada apa yang plaintif telah tulis dalam jawapan
kepada surat tunjuk sebab dan tidak ada yang lain (lihat ms 685F-G).
(3) Adalah tidak adil untuk menafikan kakitangan awam peluang untuk
dibicarakan berkaitan dengan pengurangan sebelum hukuman dikenakan ke
atasnya, kerana hukuman itu sendiri melibatkan proses membuat keputusan
selanjutnya.Hak plaintif untuk didengar berkaitan dengan pengurangan adalah
terkandung secara tersirat dalam perintah am 23 Perintah-Perintah Am dan
dalam perkara 135(2) Perlembagaan Persekutuan. Oleh yang demikian, oleh
kerana adalah diketahui umum bahawa defendan pertama tidak memberikan peluang
kepada plaintif untuk dibicarakan berkaitan dengan pengurangan sebelum
hukuman, proses membuat keputusan berhubung dengannya adalah salah (lihat ms
689D dan 691A-C).
(4) Dalam kes ini, adalah diluar rangkuman kajian semula kehakiman untuk
mahkamah menyentuh keputusan itu sendiri dan mempertimbangkan sama ada, jika
plaintif didapati seorang penagih dadah, dia boleh dibenarkan untuk
meneruskan pekerjaan di institusi seperti hospital. Apa yang perlu diputuskan
dalam skop mahkamah adalah oleh sebab ketidakpatuhan kepada perintah am 23
Perintah-Perintah Am dan perkara 135(2) Perlembagaan Persekutuan dalam cara
defendan pertama membuat keputusan telah menjadikan keputusan mereka atas
hukuman yang dikenakan, penamatan perkhidmatan plaintif telah menjadi tidak
berguna, batal dan tak sah dan tidak mempunyai kesan (lihat ms 691H-I dan
692B).]
Notes
For a case on termination of service of member of public service, see 1 Mallal’s Digest (4th Ed, 1995 Reissue) para 451.
For cases on the rights and liabilities of public servants, see 1 Mallal’s Digest (4th Ed, 1995 Reissue) paras 404-452. [*679]
Cases referred to
Alan Noor bin Kamat v Inspector General of Police & Anor [1987] 1 CLJ 51
Asriyah bte Sairy v Suruhanjaya Perkhidmatan Awam Malaysia Federal Court Civil Appeal No 01-41-94
Bachhittar Singh v State of Punjab & Anor 1963 AIR SC 395
C Apparao v The Deputy Inspector General of Police, Northern Range, Waltair & Anor 1958 AIR 269 And Pra
Dewan Undangan Negeri Kelantan & Anor v Nordin bin Salleh & Anor [1992] 1 MLJ 697
Ganesh Balakrishna Deshmukh v State of Madhya Bharat (1956) Mad Bha 172
Gangadhar Gurusiddappa v Union of India 1963 AIR Mys 193
Halimatussaadiah bte Hj Kamaruddin v Public Service Commission, Malaysia & Anor [1992] 1 MLJ 513, [1994] 3 MLJ 61
High Commissioner of India v IM Lall 1948 AIR PC 121
Hiro Lilaram Chablani v State of Hyderabad 1955 AIR Hyde 48
Ong Ah Chuan v PP [1981] 1 MLJ 64
Pancha Moorthy a/l Suppaya v Suruhanjaya Perkhidmatan Awam, Malaysia Federal Court Civil Appeal No 01-40-94
Pergamon Press Ltd, Re [1970] 3 All ER 53
PP v Lee Eng Kooi [1993] 2 MLJ 322
Shamsiah bte Ahmad Sham v Public Services Commission, Malaysia & Anor [1990] 3 MLJ 364
Shri Sitaram Sugar Co Ltd v Union of India & Ors [1990] 3 SCC 223
Smt Maneka Gandhi v Union of India 1978 AIR SC 597
Sobhagmal v State 1954 AIR Raj 207
Sher Singh, Malhan, Petition er v State Madhya Pradesh 1955 AIR Nag 175 42 CN 40
State of Bihar v Abdul Majid 1954 AIR SC 245
State of Bombay v Amarsinh Raval 1963 AIR Guj 244
Syed Mahadzir bin Syed Abdullah v Ketua Polis Negara & Anor [1994] 3 MLJ 391
Tribhuwan Nath Pandey v Union of India 1953 AIR 138 Nag
Tropiland Sdn Bhd v Majlis Perbandaran Seberang Perai [1996] 4 MLJ 16
Vasant Pandurang Deval v The State of Bombay 1963 AIR 269 Bom
Legislation referred to
All India Services (Disciplinary and Appeal) Rules 1969 Pt IV
Evidence Act 1950 ss 91 and 92
Constitution [India] art 311(2)
Dangerous Drugs (Special Preventive Measures) Act 1985
Federal Constitution art 5(1), 8(1), 135(2)
Public Officers (Conduct and Discipline) General Orders (Chapter D) Regulations 1969 regulation 27
Public Officers (Conduct and Discipline) (Chapter D) General Orders 1980 general orders 23, 26, 26(5), 33, 34, 35(1), 36, Pt II [*680]
Karpal Singh ( Jagdeep Singh with him) ( Karpal Singh & Co) for the plaintiff.
Syed Marzidy bin Syed Marzuki (Federal Counsel) for the defendants.
LAWYERS: Karpal Singh ( Jagdeep Singh with him) ( Karpal Singh & Co) for the plaintiff.
Syed Marzidy bin Syed Marzuki (Federal Counsel) for the defendants.
JUDGMENTBY: VINCENT NG J
The plaintiff was at all material times a hospital attendant in the General Hospital Penang and was an employee of the second defendant.
In this case, he is suing the defendants for the following reliefs: (i) a declaration that the purported dismissal of the plaintiff as hospital attendant Tingkatan Biasa in the General Hospital, Penang is null and void and of no effect and that the plaintiff is still a hospital attendant Tingkatan Biasa entitled to all the salaries and benefits due to him; and (ii) an inquiry to determine the salaries, emoluments and other benefits due to the plaintiff; interest and costs.
By a letter dated 31 January 1991, the plaintiff was asked to show cause why disciplinary action should not be taken against him on the grounds that he was a drug addict as the sample of urine taken from him was tested positive on 5 May 1990 for morphine. The letter (marked ‘DP10’) is set out in full as follows:
Bahawa satu laporan telah diterima oleh Lembaga Tatatertib yang
menyatakan bahawa Tuan/En Utra Badi a/l K Perumal, Atendan Hospital
T/Biasa di Hospital Besar, Pulau Pinang telah berkelakuan melanggar
tatakelakuan dan membolehkan tindakan tatatertib diambil terhadap tuan.
(2) Lembaga Tatatertib, setelah menimbangkan segala maklumat yang
diterima, berpendapat bahawa tuan patut dikenakan tindakan
tatatertib dengan tujuan buang kerja atau turun pangkat di bawah
perintah am 26, Perintah-Perintah Am Pegawai Awam (Kelakuan dan
Tatatertib) (Bab D) 1980 atas pertuduhan-pertuduhan berikut:
Bahawa tuan, En Utra Badi a/l K Perumal, semasa bertugas
sebagai Atendan Hospital T/Biasa di Hospital Besar, Pulau
Pinang dalam satu ujian air kencing tuan secara mengejut
pada 5 Mei 1990 telah disahkan sebagai penagih dadah kerana
ujian contoh air kencing yang diambil didapati positif
mengandungi morfin. Perbuatan tuan menjadi seorang penagih
dadah adalah merupakan satu perbuatan yang boleh
menjatuhkan reputasi Perkhidmatan Awam dan adalah melanggar
tatakelakuan di bawah perintah am 4(2)(d) dalam
Perintah-Perintah Am Pegawai Awam (Kelakuan dan Tatatertib)
(Bab ‘D’) 1980.
Jika tuan didapati bersalah, tuan boleh dihukum mengikut
perintah am 36 dalam Perintah-Perintah Am yang sama.
(3) Mengikut perintah am 26, Perintah-Perintah Am Pegawai Awam
(Kelakuan dan Tatatertib) (Bab D) 1980 tuan adalah diminta
membuat satu representasi secara bertulis yang mengandungi
alasan-alasan yang tuan hendak gunakan untuk tuan membebaskan
diri tuan. Representasi tersebut hendaklah dikemukakan kepada
Lembaga Tatatertib Perkhidmatan Awam, melalui Ketua Jabatan tuan
dalam tempoh 14 hari dari tarikh tuan menerima surat ini.
Sekiranya tuan tidak membuat representasi tersebut dalam tempoh
masa yang ditetapkan itu, tuan akan dianggap sebagai tidak hendak
membela diri dan perkara ini akan diputuskan oleh Lembaga
Tatatertib Perkhidmatan Awam, Hospital Besar, Pulau Pinang
berdasarkan keterangan-keterangan yang sedia ada sahaja.
[*681] The plaintiff was given 14 days to reply from the date of receipt of the said letter.
On 7 February 1991, the plaintiff by a letter of even date (marked ‘DP12’) wrote to the first defendant giving his explanation on the charge proffered against him as follows:
Surat tuan Bil Rujukan (5) dlm HB/PP/PER/TT/1240 (SULIT) bertarikh 31
Januari 1991 telah selamat diterima dan diucapkan terima kasih.
Untuk makluman tuan, saya bukanlah seorang penagih dadah sepertimana
yang dinyatakan didalam surat tuan. Saya sekali lagi merayu di atas
jasa baik tuan untuk bersimpati dengan rayuan saya yang hina ini
untuk menjalankan ujian air kencing sekali lagi di atas diri saya.
Ujian air kencing yang dibuat pada 5 Mei 1990 besar kemungkinan
merupakan satu kesilapan teknik. Mungkin air kencing itu bukan air
kencing saya.
Untuk makluman tuan, pekerja-pekerja di Hospital Besar, Pulau Pinang
sangat mengetahui di atas kelakuan saya dan saya bukanlah seorang
penagih dadah. Begitu juga dengan kaum keluarga saya, semuanya sangat
mengetahui bahawa saya bukan seorang penagih dadah. Saya sangat benci
pada dadah dan tidak pernah melibatkan diri dengan penagih dadah.
Saya tidak berhasrat untuk merosakan rekod perkhidmatan saya selama 27
tahun dengan Kerajaan dan tidak pernah dikenakan sebarang tindakan
tatatertib oleh Jabatan.
Kerjasama tuan di atas rayuan saya ini sangat-sangatlah diharapkan dan
disanjung tinggi dan diatas rayuan saya ini untuk menjalankan ujian air
kencing sekali lagi akan mendapat persetujuan dan pertimbangan yang
sewajarnya daripada tuan.
About one month later, on 20 March 1991, the Pengerusi, Lembaga Tatatertib Perkhidmatan Awam Kumpulan D Pulau Pinang forwarded to the plaintiff a letter (marked ‘DP13’) dismissing him from service wef 20 March 1991, which reads as follows:
Lembaga Tatatertib di dalam mesyuarat yang ke 2/1991 pada 20 Mac 1991
setelah menimbangkan dengan teliti pertuduhan ke atas tuan dan jawapan
yang diberi oleh tuan serta maklumat-maklumat lain yang berkaitan,
memutuskan bahawa tuan dikenakan hukuman buang kerja mulai 20 Mac 1991
mengikut perintah am 36(i) Perintah-Perintah Am Pegawai Awam (Kelakuan
dan Tatatertib) (Bab D) 1980.
(2) Mengikut Peraturan l2(1) dan l3(1) Peraturan-Peraturan Lembaga
Tatatertib Perkhidmatan Awam 1972 (PU (A) 48) tuan adalah dengan
ini diberi peluang untuk membuat rayuan kepada Lembaga Rayuan
Tatatertib melalui Ketua Jabatan tuan di dalam tempoh 14 hari
mulai dari tarikh penerimaan surat keputusan Lembaga Tatatertib
ini.
Soon after receipt of DP13 the plaintiff by his letter dated 26 March 1991 (marked ‘DP14’) wrote an appeal to the Lembaga Rayuan Tatatertib Perkhidmatan Awam, Kumpulan ‘D’. He set out in detail his grounds in the following terms:
Atendan Hospital,
Hospital Besar,
Pulau Pinang.
26 Mac 1991.
[*682] Pengerusi,
Lembaga Rayuan Tatatertib Perkhidmatan Awam,
Kumpulan ‘D’,
Jabatan Perkhidmatan Awam,
Pulau Pinang.
Melalui: Saluran-saluran tertentu
Tuan,
Per: Rayuan terhadap keputusan Lembaga Tatatertib pada 20 Mac 1991 yang
mengenakan hukuman buang kerja
Saya dengan hormatnya merujuk kepada surat tuan bil (13) dlm
HB/PP/PET/TT/1240 (SULIT) bertarikh 20 Mac 1991 dan ingin merayu
terhadap keputusan tersebut atas alasan-alasan yang berikut:
(a) Dalam mencapai keputusan ini, pihak Lembaga tidak mengambil kira
akan alasan-alasan yang telah saya berikan ke atas tuduhan yang
dibuat terhadap saya dan dengan itu keputusan itu adalah dibuat
secara terburu- buru dan tanpa sebab-sebab yang berasas;
(b) Saya telah mengemukakan pembelaan yang kuat terhadap tuduhan ke
atas diri saya mengenai ujian air kencing di mana bukti-bukti
bertulis mengenai ubat yang dimakan oleh saya pada ketika itu
telah pun dibuktikan;
(c) Ujian air kencing secara mengejut yang dijalankan pada 7 Mei 1990
tidak dilakukan dengan sempurna dan ia menimbulkan keraguan sama
ada:
(i) air kencing saya telah diperiksa atas nama saya; atau
(ii) air kencing orang lain telah diuji atas nama saya.
(d) Semasa ujian air kencing dijalankan, saya hanya diberi sebuah
botol yang kosong tanpa sebarang lebel padanya dan dengan itu ada
kemungkinan besar air kencing saya diuji atas nama orang lain dan
air kencing orang lain diuji atas nama saya.
(e) Kemungkinan yang lebih besar yang membawa kesan dadah dalam air
kencing saya ialah bahawa pada ketika itu saya telah makan/minum
‘Linctus Codeine’ kerana sakit batuk;
(f) Lapuran ujian air kencing ini telah diberitahu kepada saya pada
24 September 1990, iaitu lebihkurang 41/2 bulan selepas ujian air
kencing dibuat. Tetapi jika keputusan ujian itu dikeluarkan
dengan segera maka saya mungkin akan membuat satu lagi ujian
melalui seorang doktor atau ahli kimia yang lain dan dengan itu
ujian mengejut yang dijalankan oleh pihak hospital dapat dicabar;
(g) Saya tidak diberi peluang langsung untuk mencabar atau membela
diri ke atas ujian air kencing yang dijalankan oleh pihak
hospital; oleh itu keraguan adalah ditimbulkan sama ada ujian itu
dikendalikan dengan sempurna.
(h) Untuk menentukan sama ada seorang yang terlibat dengan dadah
memerlukan banyak ujian dan ia tidak boleh ditentukan dengan satu
ujian air kencing secara mengejut; tambahan pula dalam kes ini,
seperti yang tersebut di atas, ada kemungkinan terdapat kesan
dadah akibat saya memakan ubat pada ketika itu.
[*683] (i) Lembaga Tatatertib tidak memberi pertimbangan yang wajar terhadap
banyak keraguan yang timbul dari hasil ujian air kencing yang
mengejut ini dan dengan itu keputusan yang dibuat terhadap saya
adalah tidak adil;
(j) Saya mempunyai rekod perkhidmatan yang bersih selama 27 tahun dan
pegawai-pegawai atasan saya yang pernah saya bertugas dengan
mereka telah memberi pengesahan bertulis bahawa saya bukanlah
seorang yang terlibat dengan dadah dan bahawa saya adalah orang
yang berkelakuan baik;
(k) Hukuman pembuangan kerja adalah suatu hukuman yang sangat berat
dan muktamad. Oleh itu, tuduhan terhadap seseorang pekerja itu
hendaklah terbukti tanpa sebarang keraguan walau sedikit
sekalipun. Jika terdapat atau timbulnya sedikit keraguan
sekalipun ke atas bukti tuduhan itu, maka faedah keraguan itu
haruslah diberi kepada orang yang kena tuduh itu.
Oleh yang demikian, memandangkan terlalu banyak keraguan yang telah
timbul terhadap tuduhan ke atas diri saya dalam kes ini maka saya
merayu supaya hukuman yang dikenakan terhadap saya dibatalkan atau
dikaji semula kerana sekali lagi saya ingin menegaskan bahawa saya
bukanlah seorang pengagih dadah atau orang yang terlibat dengan dadah.
Sekian, terimakasih.
Saya yang menurut perintah,
tt (Utara Badi a/l Perumal)
The plaintiff’s appeal was rejected vide a letter from Suruhanjaya Perkhidmatan Awam Malaysia Kuala Lumpur (marked ‘DP17’) which states thus:
Saya diarah menarik perhatian kepada surat tuan terhadap keputusan
Lembaga Tatatertib Kumpulan ‘D’ Hospital Besar, Pulau Pinang yang telah
mengenakan hukuman buang kerja ke atas tuan.
(2) Lembaga Rayuan Tatatertib (Kumpulan ‘D’) dalam mesyuaratnya yang
ke 526 pada 17 Jun 1991 setelah menimbangkan dengan teliti rayuan
tuan itu, telah memutuskan bahawa hujah-hujah yang dikemukakan
bagi menyokong rayuan tuan itu tidak dapat diterima sebagai boleh
mengubah keputusan Lembaga Tatatertib yang telah menjatuhkan
hukuman buang kerja ke atas tuan. Dengan hal yang demikian,
Lembaga Rayuan mengambil keputusan menolak rayuan tuan.
(3) Keputusan Lembaga Rayuan Tatatertib ini adalah muktamad.
The plaintiff sought to move the court for a declaration by way of invoking this court’s power of judicial review. This law is now well settled, and pointedly so, when on 8 May 1996 the Federal Court held, in Civil Appeal No 01-41-94 ( Asriyah bte Sairy v Suruhanjaya Perkhidmatan Awam, Malaysia) and Federal Court Civil Appeal No 01-40-94 ( Pancha Moorthy a/l Suppaya v Suruhanjaya Perkhidmatan Awam, Malaysia) that there can be declarations made in relation to unlawful dismissal of a government servant. See also Halimatussaadiah v Public Service Commission, Malaysia [1992] 1 MLJ 513 as confirmed by the Supreme Court in Halimatussaadiah bte Hj Kamaruddin v Public Services Commission, Malaysia & Anor [1994] 3 MLJ 61 and Syed Mahadzir bin Syed Abdullah v Ketua Polis Negara & Anor [1994] 3 MLJ 391 [*684] which was also affirmed on appeal to the Federal Court; in both the cases, declarations were sought for wrongful dismissal of a Government servant.
The plaintiff, through his solicitor, Mr Karpal Singh, raised only three issues. Firstly, he contended that the wording in DP10 (show cause letter) which contained two alternative punishments under general order 26 (or indeed, more than two punishments under general order 36) of the Public Officers (Conduct and Discipline) (Chapter D) General Orders 1980, has nullified the charge itself for want of clarity. He contended that the first defendant should only have stated which of the alternative punishments they intended to use against him, to enable the plaintiff to be prepared for the serious consequences of the charge and be better able to direct his mind to the possibility of such a punishment; it being obvious that dismissal from the service is the most severe punishment that can be imposed upon a civil servant found guilty of misconduct. With respect, I find this objection untenable as, essentially, it pertains to the penalty rather than the charge being equivocal and I do not see how it could affect the validity of the charge. There is nothing wrong with the way the charge is worded in DP10 considering that it is in exact compliance with general order 26 and it contained all the necessary particulars to enable the plaintiff to prepare his written representation in answer thereto. In my view, the charge was properly drafted with enough particulars rendered, to enable the plaintiff to respond to the allegations made and for the purpose of exculpating himself, though an outline of the charge would usually suffice. See Re Pergamon Press Ltd [1970] 3 All ER 535. The second issue was that the lst defendant had taken into account other material information which had never been put to the plaintiff. He contended that this must have happened, in view of the expression in DP13:
… setelah menimbangkan dengan teliti pertuduhan ke atas tuan dan
jawapan yang diberi oleh tuan serta maklumat-maklumat lain yang
berkaitan. (Emphasis added.)
This would mean that other matters extraneous to the charge itself, which were never made available to the plaintiff, appeared to have been taken into consideration by the Board, without any opportunity accorded to the plaintiff to make his representation on those extraneous matters. In essence, the complaint is that the plaintiff was not given a reasonable opportunity to be heard on the other relevant information that appeared to have been considered in the decision making process which led to his dismissal from service.
In Shamsiah bte Ahmad Sham v Public Services Commission, Malaysia & Anor [1990] 3 MLJ 364, the employer had taken into account the employee’s record of past conduct without giving her an opportunity to explain or controvert its contents. Jemuri Serjan SCJ (as he then was) delivering the judgment of the Supreme Court, in allowing the appeal had this to say (pp 368D, 369I):
… What we are saying is that if these materials which have such
damning effect on her case are to be used against her she should be
given a right to [*685] be heard on them. It is not a matter of
pure technicality but it is absolutely fundamental in law that the
appellant should have been given an opportunity of stating her case
regarding her past conducts, considering that the dismissal of a civil
servant is no light matter. …
We wish to add that it has been held that tribunals must not continue
privately to obtain evidence or other information between the
conclusion of the hearing and the making of the decision, without
notifying the parties so as to give them an opportunity to make
submissions on it.
On this issue, reverting to the current matter, the defence called En Karnail Singh a/l L Sohan Singh (DW1), who was at the material time the Deputy Medical Superintendent of Penang General Hospital and also a member of the Disciplinary Board. He explained that by the expression ‘maklumat-maklumat lain yang berkaitan’ in the para 1 of DP13, the Board had meant and was intended to refer to the contents in paras 2, 3 and 4 of the plaintiff’s reply to DP12. He further said that the Board did not take into account any other information but only the result of the urine test. He was positive that, that was the only reason for the plaintiff’s dismissal. And, he acknowledged that there was no oral enquiry, as all representations were made in writing, and that the plaintiff was not given an opportunity to mitigate before imposition of punishment. It is noted that Mr Karpal had in this regard, quite correctly conceded that DP13 is not caught within ss 91 and 92 of the Evidence Act since it was not a document that was required to be reduced into writing under the General Orders.
Thus, after having carefully studied and considered the evidence of DW1, I am satisfied that the defendants have given a full, adequate and acceptable explanation as to what that impugned phrase in DP13 meant, and I accept DW1’s assertion that there were no extraneous matters considered by the Board other than the fact that plaintiff’s urine was tested positive for morphine. I am also minded to accept DW1’s explanation that the other relevant information (‘maklumat-maklumat lain yang berkaitan’) referred to was what the plaintiff had written in his letter of representation (DP12) and nothing more. In the event, the plaintiff’s second challenge on the Board’s procedure does not commend itself to me, and is, as with the first point, devoid of any merit.
It is however, the third and last point taken by Mr Karpal Singh, which I must now turn to, that has engendered in me some considerable interest, and I am sure, the interest of our superior courts hereafter. This issue poses the question: Whether a civil servant is clothed with any right to an opportunity to mitigate before punishment, especially in cases where two or more punishments are held out to him as alternative or possible punishments?
The plaintiff complains that the first defendant — a decision maker — has failed to give the plaintiff, whose interest will be adversely affected by the decision to dismiss him, an opportunity to be heard on the issue of punishment. It is submitted that this right to mitigate is also an implied requirement under art l35(2) of the Federal Constitution which found expression and affirmation through incorporation in general order 23 [*686] of the Public Officers (Conduct and Discipline) (Chapter D) General Orders 1980 (General Orders) and regulation 27 of the Public Officers (Conduct and Discipline) General Orders (Chapter D) Regulations 1969. Mr Karpal Singh contends that, as the penalty/punishment was expressed in equivocal terms, the plaintiff shouldnot be dismissed or reduced in rank unless he has been afforded a reasonable opportunity to mitigate. The plaintiff was informed in DP13 that he had been dismissed. It was thus urged upon this court that such a drastic measure which involved loss of the plaintiff’s very livelihood ought, in fairness, to require that he be given the opportunity to make a plea in mitigation for the lighter of the two alternative punishments stated in the charge. My attention was drawn to art 135(2) of the Federal Constitution, which states:
No member of such a service [public service] as aforesaid shall be
dismissed or reduced in rank without being given a reasonable
opportunity of being heard.
On the question of the possible punishments, Mr Karpal, had also made heavy weather of the last sentence in para 2 of DP10 which reads: ‘Jika tuan didapati bersalah, tuan boleh dihukum mengikut perintah am 36 dalam Perintah-Perintah Am yang sama’, and general order 36 sets out nine possible punishments. Though, I am inclined to agree with Mr Karpal’s contention that DP10 is the type of document which the law requires to be reduced to writing, in which case, ss 91 and 92 of the Evidence Act 1950 is applicable to preclude the defendant from contradicting, varying, adding to or subtracting from its terms. In support of this contention, counsel cited my decision in PP v Lee Eng Kooi [1993] 2 MLJ 322 — pertaining to a similar issue of the police report which was required under s 107(1) of the Criminal Procedure Code to be reduced to writing — which has been upheld by the Federal Court under Criminal Appeal No 05-63-93. However, I find, and I am fully satisfied that the language ‘dengan tujuan buang kerja atau turun pangkat di bawah perintah am 26’ appearing in the first sentence of the same paragraph of DP10 would have the net effect of sufficently clarifying the last sentence of DP10, as, the impugned phrase has essentially to be read in the context of the clear expression in the first sentence of the same paragraph in the same document. Be that as it may, yet it is nevertheless beyond question that at least two alternative, and in that sense, equivocal punishments have been held out to him. This being the case, Mr Karpal’s third contention calls for this court’s careful deliberation.
As far back as in 1987, Ajaib Singh J in the case of Alan Noor bin Kamat v Inspector General of Police & Anor [1987] l CLJ 51 had this to say (at p 56):
… 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 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 [*687] 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?
However, Ajaib Singh J decision in Alan Noor went up on appeal to the Supreme Court, but though the appeal was dismissed, Salleh Abas LP made certain obiter comments which are somewhat at variance with the dicta of Ajaib Singh J in the court below. This is what the Lord President had to say:
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 comtemplated 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.
The above dicta of Salleh Abas LP is clearly obiter and for reasons below, I am, with respect, not pursuaded to adopt it.
Even at first blush, it had struck me as somewhat unjust to deny the plaintiff here an opportunity to mitigate where it involves alternative punishments, before penalty is imposed in criminal jurisprudence, as:
(a) the two alternative punishmentsnotified to the plaintiff were
tentative, drastically distinct in effect and distinctively equivocal in
specie, one from the other.
(b) the heavier of the two alternative punishments is severely penal in
nature.
(c) the very question of which one of the two alternative punishments to
mete out to the plaintiff would itself essentially entail a deliberative
decision making process on the part of the defendant Board.
Unlike some other jurisdictions, both India and Malaysia are each governed by a written Constitution. It is noteworthy, that the exercise of termination of employment of a government servant in India is subject to the provisions of art 311 of the Indian Constitution which is equivalent to our art 135(2).
There is a striking similarity in the language employed, by the formulators of the two Constitutions, in art 135(2) (‘art 135(2)’) of the Federal Constitution and art 311(2) (‘art 311(2)’) of the Indian Constitution. Article 135(2) reads as follows:
[*688] No member of such a service as aforesaid shall be dismissed or reduced
in rank without being given a reasonable opportunity of being heard:
Provided that this Clause shall not apply to the following cases:
(a) where a member of such a service is dismissed or reduced in rank
on the grounds of conduct in respect of which a Criminal charge
has been proved against him;
And art 311(2) reads:
No such person as aforesaid shall be dismissed or removed or reduced in
rank except after an inquiry in which he has been informed of the
charges against him and given a reasonable opportunity of being heard
in respect of those charges. …
Provided that this clause shall not apply —
(a) where a person is dismissed or removed or reduced in rank on the
ground of conduct which has led to his conviction on a criminal
charge; … .
Though proviso (a) of our art 135(2) is wholly irrelevant to the current discussions, yet it is nevertheless of interest to note that it has been held by our Court of Appeal that this proviso (a) precludes invocation of art 135(2) not only by a civil servant who has been convicted of a criminal charge, but also, by such employee who is bound over under s 173A(ii)(b) with no conviction recorded. See Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261.
It would follow that the decisions of the Indian courts upon such analogous provision are to be accorded greater weight and regarded as of great persuasive force in our decisions here. It is pertinent to note that Pt IV of the All India Services (Disciplinary and Appeal) Rules 1969 (which deals with the procedure for disciplinary action against Indian civil servants) require the holding of an inquiry, unlike our General Orders which, in Pt II (in the case of dismissal or reduction in rank) provide for only a show cause letter and written representations; albeit, with provision for the Disciplinary Authority to appoint a committee of inquiry (under general order 26(5)), but even then, if further clarification is necessary. Yet, despite the fact that holding of an inquiry is mandatory in India, it has been consistently held in a copious and welter of Indian cases, (which followed the Privy Council decision in High Commissioner of India v IM Lall AIR 1948 PC 121), that it is manifest in art 311 that a civil servant has a right to a reasonable opportunity of showing cause twice before an order of dismissal is imposed. These two stages under art 311 are: first, when the charges are enquired into, and secondly, when after the enquiring authority has come to the conclusion that the charge or charges has been established and there arises the question of the proper punishment to be imposed, a notice has then to be given to show cause against the nature of punishment to be imposed; see Sher Singh, Malhan, Petition er v State Madhya Pradesh AIR 1955 Nag 175; 42 CN 40.
The ratio in Sher Singh has been faithfully echoed in similar vein in the following other Indian cases:
[*689] (i) Tribhuwan Nath Pandey v Union of India AIR 1953 Nag 138
(ii) Sobhagmal v State AIR 1954 Raj 207
(iii) Hiro Lilaram Chablani v State of Hyderabad AIR 1955 Hyde 48
(iv) Ganesh Balakrishna Deshmukh v State of Madhya Bharat (1956) Mad
Bha 172
(v) C Apparao v The Deputy Inspector General of Police, Northern Range,
Waltair & Anor AIR 1958 And Pra 269
(vi) Bachhittar Singh v State of Punjab & Anor AIR 1963 SC 395
(vii) State of Bombay v Amarsinh Raval AIR 1963 Guj 244
(viii) State of Bihar v Abdul Majid AIR 1954 SC 245
(ix) Vasant Pandurang Deval v The State of Bombay AIR 1963 Bom 269
(x) Gangadhar Gurusiddappa v Union of India AIR 1963 Mys 193
(xi) The High Commissioner of India v IM Lall AIR 1948 PC 121.
I have earlier expressed a tentative opinion that it would be unjust to deny the civil servant an opportunity to be heard in mitigation before punishment is imposed on him, as the punishment itself involves a further decision-making process. Now, upon careful reading of the speech of Lord Thankerton, delivered on behalf of the Privy Council in IM Lall, I find eminently pursuasive and authoritative dicta to fortify that opinion. The reason being also that the expressed alternative punishments are merely suggested punishments, and hence hypothetical, until a definite decision has been come to on the charges. I need do no more in this regard than to quote the relevant passage in Lord Thankerton’s speech, which was logically and aptly articulated thusly:
In the opinion of their Lordships, no action is proposed within the
meaning of the subsection until a definite conclusion has been come to
on the charges, and the actual punishment to follow is provisionally
determined on. Prior to that stage, the charges are unproved and the
suggested punishments are merely hypothetical. It is on that stage
being reached that the statute gives the civil servant opportunity for
which sub-s (8) makes provision. 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 enquiry under R55, 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 enquiry.
Pertaining to the right to mitigate, I have not overlooked the language used in general order 35(1), which, if read in isolation, may appear to militate against the plaintiff’s case, as being in effect a denial of the right to mitigate. It reads:
Notwithstanding anything in General Order 23, if after considering the
report and documents submitted by the Head of Department general orders
33 and 34(1), the appropriate Disciplinary Authority is of the opinion
that the officer merits dismissal or reduction in rank, it may
forthwith direct [*690] accordingly; or if it is of the opinion
that the officer should be inflicted with a lesser punishment or
otherwise dealt with, the Disciplinary Authority may forthwith inflict
upon the officer such lesser punishment or deal with him such a manner
as it may deem fit.
However, it is crystal clear that General Order 35(1) is only applicable in the context of General Order 33 (which deals with an officer where criminal proceedings against him results in his conviction) and also General Order 34 (1) (which concerns procedure in the case of preventive detention and banishment). And, in the context of criminal proceedings, be it noted that regulation 28 defines the term ‘convicted’ or ‘conviction’ to include a finding or an order involving a finding of guilt in a criminal court. Hence, General Order 35(1), which allows a Disciplnary Authority to ‘forthwith inflict upon the officer such lesser punishment’ of ‘dismissal’ or ‘reduction in rank’ or ‘deal with him in such manner as it may deem fit’– thereby implying that the civil servant is not clothed with any right to mitigate on the punishment — is manifestly and plainly intended by the legislature to be invoked only where the servant’s case falls strictly within the ambit of the proviso (a) of art 135(2) or General Order 34(1) and not otherwise. This is logically so, as in the firstplace, such civil servant who is caught within proviso (a) of art 135(2) is expressly barred by the supreme law of the land from the right to be heard or an opportunity to show cause before being removed or reduced in rank. Here, it is crucial to note that it has never been the defendants’ contention that the plaintiff is caught within proviso (a) of art 135(2).
It ought to be borne in mind that unlike a reduction in rank, the extreme punishment of dismissal from service severely affects the civil servant’s future, in terms of loss of livehood and his family’s loss of his financial support; to him it is loss of the ultimate stake in his future. Thus, I hold that when the Board decided to dismiss the plaintiff, a decision making process was undertaken; and the decision to dismiss him was done as much in the process of exercising a quasi-judicial function as the decision to reject his written representations to exculpate himself on the show cause notice.
If art 135(2) is read in conjunction with arts 5(1) and 8(1) of the Federal Constitution, it cannot be denied that procedural fairness in dealing with matters affecting the citizens is also part of our law, as the word ‘law’ in both articles encompasses both substantive law and enacted procedure. See Ong Ah Chuan v PP [1981] 1 MLJ 64, Dewan Undangan Negeri Kelantan & Anor v Nordin bin Salleh & Anor [1992] 1 MLJ 697, Smt Maneka Gandhi v Union of India AIR 1978 SC 597 and Shri Sitaram Sugar Co Ltd v Union of India & Ors [1990] 3 SCC 223. See also Tan Tek Seng, in which this point was extensively discussed by Gopal Sri Ram JCA, delivering the majority judgment of the Court of Appeal. As this nation moves towards a modern society, governed by just and justiciable laws, firmly and fairly enforced, with its executive actions avowed to be anchored upon the principles of transparency and accountability, it is inevitable that an increasingly more liberal and purposeful approach would have to be taken by the courts, in interpreting the rights of the citizenry, in the light [*691] of and to implement the true brooding spirit of the framers of the Federal Constitution. It is thus my considered decision that the right of the plaintiff to be heard in mitigation is implicitly encompassed in general order 23 of the General Order and in art 135(2) of the Federal Constitution, unless proviso (a) thereof is applicable (not the case here). He has to be heard throughout the proceedings from the beginning to the end. And, with respect, I agree with the dicta encapsulated in the rhetorical question posed by Ajaib Singh J in the case of Alan Noor: ‘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?’ Consequently, in my judgment, as it is common ground that the first defendant had not given the plaintiff any opportunity to be heard in mitigation before punishment, the decision making process pertaining thereto is fatally flawed.
As I have held that the plaintiff is entitled to succeed due to procedural error on the part of the first defendant which has seriously prejudiced the rights of the plaintiff, I shall now finally turn to consider the nature of relief or order that is open for this court to make. It is trite law, in our as well as other Commonwealth jurisdictions, that the scope of judicial review is limited only to review of the decision-making process and not the decision itself. (See Tropiland Sdn Bhd v Majlis Perbandaran Seberang Perai [1996] 4 MLJ 16.)
It is in the vital interest of the citizenry that the powers of the court on judicial review ought, in a democracy, essentially to be preserved if only to check and curb the occasional excesses or capricious ness of the executive and public administrative bodies. Indeed, if we are to maintain the essential basic principles governing a democracy, it becomes the bounden duty of the courts to intercede in favour of the citizen when such lapses are manifest (as happened in Tropiland Sdn Bhd v Majlis Perbandaran Seberang Perai). The courts have thus jealously and vigilantly guarded its powers of judicial review. It must be borne in mind that the courts have often exercised its powers of judicial review in the teeth of ouster of jurisdiction provisions in certain statutes, eg for writ of habeas corpus despite s 11C of the Dangerous Drugs (Special Preventive Measures) Act 1985. In judicial review, the court does not sit as an appellate body and has no appellate power to exercise. So, quite rightly, in its vigilance to protect and most importantly, to preserve such powers, the courts have been consistenly averse to review or interfere with the decision per se of the executive or public administrator in such cases.
Thus, in the instant case before me, it is plainly beyond the ambit of a judicial review for this court to touch on the decision itself and consider whether, if the plaintiff was rightly found to be a drug addict, he could be allowed to continue to work in an institution such as a hospital. Though, even on this score it may also be noted that the plaintiff had in para (c) of DP14, asserted that the urine tested was not his urine as he had not taken prohibited drugs but only cough mixture. And, it is equally untenable for me here to decide whether the lesser of the two alternative penalties ought to have been imposed, as this point was not taken by either party, and [*692] quite apart from the fact that such deliberation is precluded by the lack of any printed or oral evidence on (nor do I see) to what lower rank a hospital attendant — such as the plaintiff — could be reduced.
Obviously, for the current purposes, what has to be decided — within this court’spurview — is, and I so hold that, due to non-compliance of general order 23 of the General Orders and of art 135(2) of the Federal Constitution in the manner in which the first defendant had made their decision on the punishment imposed, the termination of the plaintiff’s services had been rendered nugatory, null and void and of no effect.
In the circumstances, therefore I allow the plaintiff’s claim with costs and declare that the punishments imposed on him are null and void and of no effect. I further declare that the plaintiff is still a hospital attendant and is entitled to all his salaries and benefits due to him as such. The parties are to determine the plaintiff’s salaries and other emoluments due to him failing which an inquiry will be held by the senior assistant registrar of this court to determine these issues.
Plaintiff’s claim allowed.
LOAD-DATE: June 3, 2003
// <![CDATA[//
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)
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.
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.)
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.)
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.)
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.)
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.”
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.
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
The True and Finest Definition of Natural Justice: Prof Anwarul Yaqin Ahmad Ibrahim Kulliyah of Laws, International Islamic University & Assoc Prof Nik Ahmad Kamal Nik Mahmod Ahmad Ibrahim Kulliyah of Laws, International Islamic University
The Malayan Law Journal Articles
2001
Volume 4
[2001] 4 MLJ xlix; [2001] 4 MLJA 492001 4 MLJ xlix; 2001 4 MLJA 49
2001 Article: THE PUBLIC SERVANT S RIGHT TO PLEAD MITIGATION IN DISCIPLINARY PROCEEDINGS: SOME REFLECTIONS ON THE RECENT FEDERAL COURT JUDGMENT IN UTRA BADI Prof Anwarul Yaqin Ahmad Ibrahim Kulliyah of Laws, International Islamic University
and
Assoc Prof Nik Ahmad Kamal Nik Mahmod Ahmad Ibrahim Kulliyah of Laws, International Islamic University
Introduction
Some issues of far-reaching implications for the development of the law in respect of dismissals in Malaysia were recently determined by the Federal Court in Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang and Anor v Utra Badi a/l K Perumal. 1 The court, in a unanimous opinion, ruled that a government servant found guilty of misconduct had no separate right to raise a plea in mitigation. It allowed an appeal by the Penang General Hospital Public Services Disciplinary Authority against the decision of the Court of Appeal 2 which had earlier held that the government servant concerned, a hospital attendant facing disciplinary proceedings, had two separate rights – a right to submit explanations in his defence so as to exculpate him and, in the event his explanation was found unsatisfactory, a further right to make representations pleading for a lesser punishment.
The issue, whether or not such a right is available to a public servant, has been contested in quite a few earlier cases, besides Utra Badi. This right has been asserted on the strength of art 135(2) of the Federal Constitution, service rules pertaining to conduct and discipline of public servants as well as on the strength of the principles of natural justice. Judicial opinion on the issue has displayed profound differences. This is, at least in part, a product of the difficulty in defining the true intent behind the protective provisions of the Constitution and the rules governing disciplinary action. The problem of finding a consensus definition of such inherently ambiguous concepts as procedural fairness or reasonable opportunity has further exacerbated the position. [*50]
The Federal Court judgment in Utra Badi now sets some issues at rest and will be a significant source of reference in the future development of administrative law. The judgment is important in that it may have an arresting effect, at least for some time, on the pace of the growing trend, markedly noticeable in some judgments especially of the Court of Appeal, of broadly construing the protective provisions of the Constitution and reading in them an expansive concept of procedural fairness in disciplinary proceedings or of determining the validity or otherwise of a disciplinary action on the touchstone of procedural fairness . The judgment is important for a further reason. It explains the import of certain observations of Salleh Abas LP in Alan Noor, 3 which had attracted differing opinions on the question of whether the observations were a part of the ratio of the case, and as such were of binding authority on the issue of mitigation, or were merely obiter.
This article briefly reviews the various approaches the courts below had adopted on the question of whether and on what basis (constitutional, statutory or theoretical) a public servant has a right to make a plea in mitigation and looks at what the Federal Court has decided.
Conflicting High Court opinions
The question of whether a public servant has a right to make a plea in mitigation on punishment in disciplinary proceedings provides an interesting perspective. Plea in mitigation is a recognized right in criminal law and is somewhat a part of the sentencing process. Attempts have been made in the recent past by individuals affected by disciplinary action to raise the argument that a right to mitigation should be available in disciplinary proceedings too, more so where the action taken is of serious consequences. It is obvious that a public servant has a right to explain his position using any expression he wishes while answering a show cause notice, including a plea to reduce the punishment contemplated. Differences in opinions arise where the argument is that an affected employee should have two distinct opportunities: one, to be able to put up adequately his side of the case in order to exculpate him and, the other, to raise a plea in mitigation where the disciplinary authority decides to take action against him.
Disciplinary rules do not expressly provide for such a right. The question thus centers on the issue, whether such a right could be inferred from the applicable disciplinary rules or from art 135(2) of the Constitution which seeks to ensure a reasonable opportunity of being heard or from the notional requirements of procedural fairness.
In Utra Badi, 4 the question that arose for determination at the High Court of Malaya, Pulau Pinang was whether the plaintiff s dismissal was void for want of opportunity to mitigate. The plaintiff, who was a hospital [*51] attendant was asked to show cause why disciplinary action for dismissal or reduction in rank should not be taken against him on the ground that the sample of urine taken from him was tested positive for drugs. The plaintiff denied that he was a drug addict and argued that there was a possibility that the relevant urine sample was not his but might belong to some other person. By a subsequent letter he was informed that he had been dismissed.
Vincent Ng J held the dismissal invalid as the disciplinary authority, acting under Public Officers (Conduct and Discipline) General Orders 1980, failed to provide any opportunity to the plaintiff to make a representation requesting for a lesser punishment. As the two alternative punishments were tentative, drastically distinct in effect and dismissal being the most severe punishment for a public servant, the plaintiff, in fairness, should have been given such an opportunity. The very question as to which of the two alternative punishments to mete out to the plaintiff would itself essentially entail a deliberative decision-making process on the part of the disciplinary authority. 5 A right to make a plea in mitigation could be implied in O 23 6 of the General Orders and art 135(2) 7 of the Federal Constitution.
In Samsuddin, 8 the show cause letter specified only one punishment, namely, dismissal. The plaintiff drew the attention of the High Court to the judgment in Utra Badi in his challenge against the dismissal. Kang Hwee Gee J of the High Court of Malaya, Ipoh, however, strongly disagreed.
Some of the reasons that persuaded the learned judge to deny such a right were: (a) In the context of the case, where dismissal was the only punishment expressed in the show cause letter, to say that the punishment itself involves a further process of decision-making is not correct. The disciplinary authority had already made up its mind when it issued the show cause letter to the plaintiff that action was commenced with a view to his dismissal. The authority could, at its own discretion impose a lesser punishment, without having to hear further from the plaintiff. (b) The plaintiff was only required to exculpate himself. He was at liberty to plead for a lesser punishment but this must be incorporated in the representation he wanted to make to exculpate himself. There could, therefore, be no question of a denial of any right under art 135(2) or under O 23 (c) The disciplinary procedure under the General Orders does not provide for a separate right of mitigation. [*52]
Yap Jack Keet 9 raised the same question of mitigation, the argument being that where a show cause notice has been answered and the disciplinary authority finds that the explanation is not enough to exculpate the defendant, the imposition of a punishment itself involves a decision-making process which in turn entitles the public servant to an opportunity to be heard in mitigation. Clement Skinner J of the High Court of Malaya, Ipoh declined to follow the line of approach taken by Vincent Ng J in Utra Badi and held that no such right existed.
The Court of Appeal s view
A unanimous Court of Appeal, 10 in its judgment delivered by Gopal Sri Ram JCA and Siti Norma Yaakob JCA, and with whom Mokhtar Sidin JCA concurred, held that a public servant had a right to make representations on the punishment proposed. The Court of Appeal s stand is as follows:
(a) The disciplinary procedure adopted in the case did not afford the public servant an adequate opportunity of being heard. The show cause letter was not perhaps clearly worded. Translated into English, the letter stated 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…After stating the charge that his urine was found positive for morphine, the letter stated: Your act in becoming a drug addict amounts to an act…which contravenes the conduct under O 4(2)(d). If you are found guilty, you will be punished pursuant to O 36…Pursuant to General Order 26…you are required to make a written representation setting out the grounds upon which you seek to exculpate yourself. The letter stated that he was liable to either dismissal or reduction in rank pursuant to O 26. The letter then stated that if he was found guilty, the punishment would be pursuant to O 36, Order 36 states that the disciplinary authority may impose on an officer any one or any combination of two or more of the following punishments: warning, reprimand, fine, forfeiture, stoppage of increment, deferment of increment, reduction in rank, dismissal. which specified as many as nine punishments. To the Court of Appeal, the language of the letter was crucial in that the expressions used left the intention behind it uncertain.
(b) Dismissal being the most severe of all the punishments listed in the General Orders, the public servant was entitled to an opportunity to make representations on the indicated punishments. [*53]
(c) Siti Norma Yaakob JCA was of the view that O 26 The relevant provisions of O 26, which have been the subject of discussion on the issue of mitigation read as follows: … (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. implied two stages in disciplinary proceedings. The first was to determine whether the alleged misconduct had been made out after considering the facts of the allegation and the grounds on which the affected public servant relied to exculpate himself. Once the misconduct had been established, the second stage was to determine the appropriate punishment. The public servant had a right to be heard in mitigation at the second stage. Gopal Sri Ram JCA made a more general statement:
[S]ave in those cases falling under Part III 14 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.
(d) Siti Norma Yaakob JCA stated that the right to make a representation in mitigation was implied in O 23 and art 135(2), which guarantee a reasonable opportunity of being heard. Gopal Sri Ram JCA found support in art 5(1) and 8(1) and said:
The combined effect of arts 5(1) and 8(1)…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… 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 [*54] finding of guilt is made against him, to make representations on the question of punishment. 15
The court s view that a right to make representations on the question of punishment is implied in art 135(2) read with art 5(1) and 8(1) of the Constitution was perhaps in line with the constitutional doctrine of administrative fairness developed by it in a series of decisions 16 that have given a wide interpretation to art 5(1) and 8(1) and also with Rama Chandran 17 where the Federal Court established the principle that not only the law should be fair but also any procedure established by law. 18
Another issue considered by the Court of Appeal related to the status of an observation of Salleh Abas LP in Alan Noor. 19 Was the observation constitutive of a definite rule on the question of mitigation or was it an isolated remark having no bearing on the actual issues that arose for a ruling in that case? The observation had invited sharply differing conclusions as to its nature and intent and so its status as a binding precedent.
Alan Noor was decided in circumstances somewhat similar to those that arose in Utra Badi. In that case, the plaintiff, a probationary police inspector, received a letter from the Deputy Inspector General of Police ( the Deputy IGP ) asking him to show cause why action should not be taken against him. The letter mentioned three charges levelled against him but did not mention that the Deputy IGP contemplated punishing the plaintiff by reducing his rank. The plaintiff made representations in writing in answer to the allegations raised against him. More than a year later, the Deputy IGP imposed on the plaintiff the punishment of a reduction in rank. Ajaib Singh J (as he then was) decided in favour of the plaintiff declaring the letter invalid as it failed to specify the nature of the punishment to which he was liable, which was a requirement of O 30(2). 20 He stated:
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 [*55] himself, it was incumbent upon the Inspector-General of Police thereafter to give the 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? 21
On appeal, 22 although the Supreme Court agreed with the trial judge s ruling that the letter was invalid Salleh Abas LP, who delivered the judgment, said:
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. 23
In Utra Badi, at the High Court, the defendants, in order to counter the claim of the plaintiff that he was given no opportunity to mitigate, relied on the observation in Alan Noor as the ratio of the case and as of normative authority for the court on the question of mitigation. Vincent Ng J took the position that the observation was not binding on the court as it was merely obiter in nature. 24 In Yap Jack Keet, 25 Clement Skinner JC of the Ipoh High Court disagreed with the opinion of Vincent Ng J of the Penang High Court that the observation in Alan Noor was merely obiter. 26
A more serious attempt was made, though for a different purpose, to explain the status of the observation in Alan Noor. In Samsuddin, 27 decided the same year as Utra Badi, Kang Hwee Gee J of the Ipoh High Court disagreed with Vincent Ng J in Utra Badi and interpreted the observation to mean that a government servant has no right to enter a separate plea of [*56] mitigation where the disciplinary authority specifies the nature of punishment intended to be imposed. 28 Kang Hwee Gee J went a step further and said that a plea in mitigation on sentence exists only in a judicial proceeding (and not in a disciplinary proceeding). He said:
[I]n my considered view, a plea in mitigation on sentence exists only in a trial in a court of law which employs a distinct form of procedure where the hearing is restricted to determining the guilt of an accused. A separate less formal inquiry is conducted after he is found guilty by the court to enable the appropriate sentence to be passed. It is only at this stage that the accused is allowed to plead in mitigation. But a disciplinary inquiry is not a trial. 29
The above statement is correct in so far as mitigation as a traditional concept is concerned, but it misses an important point. The earlier part of the observation in Alan Noor, which Kang Hwee Gee J accepted as the ratio of the case and as a binding precedent, clearly implies a right to make representations on the proposed punishment in a particular set of circumstances where the nature of punishment contemplated is not indicated. Alan Noorwould seem to be the authority for the proposition that where a show cause letter is silent on the nature of the possible punishment and the punishment is of a serious nature, such as dismissal or reduction in rank, the affected employee must be given an opportunity to make representations on punishment. Salleh Abas LP had no objection when this opportunity was termed by Ajaib Singh J as the plea in mitigation .
The Court of Appeal in Utra Badi endorsed Vincent Ng J s view in the High Court that the observation in Alan Noordid not constitute a binding precedent. In its view the observation was unnecessary in so far as the actual decision was concerned. It noted that the Supreme Court in Alan Noorhad declared the disciplinary action (reduction in rank) bad in law for three reasons. Firstly, the show cause letter was not issued by the appropriate disciplinary authority 30 as required by O 30(2). Secondly, there was nothing in the show cause letter to indicate that the authority intended or contemplated a reduction in his rank (a punishment which in the Supreme Court s view entailed serious consequences) thus depriving the public servant of an opportunity to prepare his defence in that light. Thirdly, there was a gap of about a year between his reply and the punishment, which might have the effect of creating an impression in his mind that the punishment would not be so serious as the one actually imposed. Gopal Sri Ram JCA concluded that the judgment in Alan Noor, which favoured the public servant, was based on specific issues, as outlined above, and the remarks of Salleh Abas LP which were made in criticism of Ajaib Singh J s remarks were unnecessary as far as the actual decision on the issues was [*57] concerned. 31 Siti Norma JCA too, in a separate judgment, held the same view and treated the observation as being made obiter. 32
The Federal Court on mitigation
The Federal Court, in its judgment delivered by Abdul Malek Ahmad FCJ, with whom Ahmad Fairuz Sheikh Abdul Halim FCJ and Steve Shim CJ (Sabah and Sarawak) concurred, held that a public servant was not entitled to make a representation as a second opportunity and that the dismissal in that case was procedurally fair. The court noted that the show cause letter was in order and its intent was not uncertain. Abdul Malek Ahmad FCJ said:
In essence, the undoubted overall effect of the show cause letter illustrated that the respondent had at the earliest available moment been informed of the two possible punishments under consideration should he not be able to exculpate himself of the charge made. With all these in mind he had been accorded every opportunity to defend himself. 33
Construing the language of O 26 which had been the subject of interpretation in the courts below, the Federal Court stated that the words it shall then proceed to consider and decide on the dismissal or reduction in rank of the officer in para 4 of O 26 do not mean that there should be another separate hearing just to consider that after asking for the officer s views again. 34
The Federal Court made an important observation as to the constitutionality of the General Orders, which had been variously construed earlier by the courts below. It stated that they were in accord with the mandate implied in art 135(2) and were also in compliance with the requirements of natural justice and procedural fairness. Abdul Malek Ahmad FCJ said:
[W]e are of the view that the General Orders, in detailing the procedures therein, have sufficiently complied with art 135(2) of the Federal Constitution and, in the process, are in accord with the concept of natural justice and procedural fairness. As succinctly stated by the learned leading Senior Federal Counsel in his submissions and as propounded in the long line of authorities considered, there is certainly no separate right to make representations upon the punishment that ought to be meted out to the officer to be dismissed or reduced in rank. In fact, under para (4) of General Order 26 of the General Orders, the first appellant is not even required to make a finding of guilt which strongly indicates that there is only one hearing for a show cause letter issued under that General Order. 35 [*58]
The Federal Court interpreted the observation in Alan Noorto the effect that if the show cause letter had specified the nature of the punishment for misconduct, there was no need to be given another opportunity of being heard before the punishment was imposed. Referring to the observation in Alan Noor, the learned FCJ said:
This … passage could only be interpreted to mean that an officer has no such right to enter a separate plea of mitigation before sentence if the disciplinary authority had made it clear in the show cause letter that the disciplinary proceeding was initiated with a view to dismiss or to reduce him in rank. That right, it would appear from the judgment, had been construed to be no more inclusive than the right to make representations to exculpate himself which the plaintiff in the instant case was bound to make under O 26(2). 36
As regards the two alternative punishments stated in the show cause letter, the court interpreted the observation in Alan Noorto the effect, in so far as the show cause letter in Utra Badi was concerned, that:
If the show cause letter had put the officer on notice as to the two most severe punishments for misconduct, there is no need for him to be given another opportunity of being heard before the punishment is imposed. 37
On the question of the status of the observation in Alan Noor, the court held that:
[T]he remarks made in Alan Noor bin Kamat s case formed part of the ratio. It was not a mere chance remark nor a subsidiary reason for the main principle and the finding was quite necessary for the decision reached. 38
Conclusion
The effect of the Federal Court judgment is that once a disciplinary action is taken against a public servant, the matter ends there. The affected public servant has no right to make any representation on the punishment imposed. If the show cause letter indicates the nature of the punishment, there is no need for him to be given another opportunity of being heard before the punishment is imposed . 39 The court arrived at this result on a plain reading of the relevant provisions of the General Orders governing the procedure in disciplinary proceedings which, in terms, nowhere talk about a right of the affected public servant to make any representation on the indicated punishment. This result is also based on the assumption that a show cause letter, where it indicates the possible punishments, is enough to meet the constitutional requirement of reasonable opportunity under art 135(2). In the court s view, where more than one punishment is indicated (or, by implication, even one) the affected public servant is at liberty to [*59] make any representation in the reply to the show cause letter itself, pleading for a lesser punishment.
This result, it seems, may sometimes be unworkable in practice. Where a public servant relying on the evidence with him denies the allegations against him in his reply to the show cause letter, pleading mitigation at the same time may amount to self-contradiction. Pleading a total denial of the truth of the charges and pleading for a lesser of the two punishments may often appear anomalous.
The Federal Court judgment, however, implies that a show cause letter gives the concerned public servant adequate opportunity to exculpate himself by submitting whatever evidence he deems favourable to his side of the case, including any additional grounds in mitigation. A separate right is not expressly assured in the relevant General Orders, nor is a part of reasonable opportunity guaranteed under art 135(2).
Where, however, a show cause letter is silent, the rule in Alan Noor, it seems, would apply and any disciplinary action would be in breach of the General Orders (where they apply). The Court of Appeal in a recent case 40 allowed the appeal by a lance corporal who was dismissed from the police force upon being convicted. Referring to Alan Noor, the court stated that the dismissal was invalid as the letter did not bring to his attention the contemplated punishments, which was in breach of Police Officers (Conduct and Discipline) Regulations 1993 and also amounted to a deprivation of procedural fairness.
The general thrust of the judgment is that a right , within the broader concept of reasonable opportunity , is available in the context of disciplinary proceedings only where such a right is expressly incorporated in the relevant substantive or procedural provisions. Principles of natural justice, or procedural fairness , have a limited role to play. In the context of the extent and scope of the right to a reasonable opportunity of being heard, the principle that the judgment seeks to emphasise is that as the disciplinary procedure is regulated by law, being the General Orders, it must be followed by the disciplinary authority and any alleged failure of reasonable opportunity must be determined within the framework of the language used. 41
This approach is rather a reaffirmation of the position taken by the Supreme Court in Ghazi bin Mohd Sawi 42 where Jerumi Serjan CJ (Borneo) speaking for the panel said: [*60]
In dealing with…General Orders we remind ourselves that we are dealing with General Orders that have legislative effect and we must guard ourselves against adding words into them which were never intended.
The learned judge found support for his view in the words of Barwick CJ in Twist, 43 where he had said:
…if the legislation has made provision for that opportunity [to be heard] to be given to the subject before his person or property is so affected, the court will not be warranted in supplementing the legislation, even if the legislative provision is not as full and complete as the court might think appropriate. Thus, if the legislature has addressed itself to the question of whether an opportunity should be afforded the citizen to be relevantly heard and has either made it clear that no such opportunity is to be given or has, by its legislation, decided what opportunity should be afforded, the court being bound by the legislation, as much as is the citizen, has no warrant to vary the legislative scheme.
The Supreme Court in that case also drew support to sustain its view, noted above, from what Lord Bridge of Harwich in Lloyed 44 had suggested:
My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well-established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.
The last lines in the passage above suggest that the courts in order to ensure fairness ought to imply additional procedural safeguards to supplement any statutory omission. However, the Federal Court judgment in Utra Badi now makes it clear that the rules regulating disciplinary procedure as they exist now in the General Orders are in compliance with art 135(2) and are also in accord with the general notion of fairness . It is on this premise that the court concluded that the General Orders are adequate in protecting the public servant in disciplinary proceedings and cannot be stretched too wide to include a right to make a representation on the punishment proposed as a second opportunity.
A further message of the judgment is that where a right is not expressly conferred by a constitutional or statutory provision or is not founded on any earlier judicial authority, such a right cannot be implied. The judgment also implies that any reliance on art 5(1) and 8(1) of the Federal Constitution as extrinsic aids in the construction of the disciplinary rules applicable to [*61] public servants is not in tune with the constitutional and statutory scheme of things. This approach leaves in doubt the efficacy of the proposition insisted on by the Court of Appeal in a series of judgments, 45 that the combined effect of the two constitutional provisions would tend to permit a court to imply certain additional safeguards where the law and its procedure are considered inadequate.
An important issue before the Federal Court in Utra Badi was whether the observation of Salleh Abas LP in Alan Noor was a part of the ratio of the case and as such was of binding authority. The Court of Appeal viewed the observation as merely obiter. Gopal Sri Ram JCA stated that the observation was not merely in the nature of an obiter but was also plainly wrong :
In my view, the obiter dictum of the Supreme Court in … Alan Noor…is plainly wrong. It was expressed without the benefit of a mature argument upon the combined effect of Articles 5(1) and 8(1) of the Federal Constitution. 46
It is not clear why the Court of Appeal expected a mature argument upon the combined effect of those articles. Articles 5(1) and 8(1) received an expansive construction only in recent years, essentially from the Court of Appeal. Their exact scope of application in many respects is yet to be settled by the apex court. Gopal Sri Ram JCA s remarks in a recent case, that art 8(1) has the effect of ensuring fairness in all forms of state action and is of wide sweep 47 may be true; but these were later developments. The learned JCA himself noted in that case that it was only in 1989 that procedural fairness as a concept was emphasized in Rohana 48 which later courts were to develop with great effect.
It may be noted here that courts following the common law tradition of stare decisis (stand by earlier decisions) have yet to develop any authentic tests for drawing the line between the ratio decidendiof a case and the part that may be regarded as merely obiter. The commonly accepted formulation of a ratio decidendi is that it is a ruling expressly or impliedly given by a court which is sufficient to settle a point of law put in issue by the parties arguments in a case, being a point on which a ruling was necessary to justify the decision in the case. 49 But a formulation like this is prone to break down in marginal situations. This is evident from the way the courts differed widely in their approach to the understanding of the observation in Alan [*62] Noor. Gopal Sri Ram JCA in Utra Badi referred to the following test suggested by Edgar Joseph Jr FCJ in Feyen: 50
[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 . 51
The test is a simple explanation of the nature of the ratio and obiter and is perhaps easier to apply than a test like the one noted above. What the test suggested was that a judge should see whether a certain statement was a chance remark . A plain reading of the Alan Noorobservation would suggest that it was not. The observation was certainly not a part of the reasons for the decision by the Supreme Court as the question of alternative punishment was not put in issue by the parties arguments. However, the Supreme Court s attention was certainly drawn by the remarks of Ajaib Singh J which, though unnecessary for a ruling by the Supreme Court, were capable of creating a state of uncertainty. The observation of Salleh Abas LP was an expression of the Supreme Court s concern to remove any possible misgivings and to see that its judgment was seen in the correct perspective. It was thus in no way in contradistinction to the ratio of the case.
But even this test, simple as it seems though, may not always be viable when applied to factual situations. Despite all the good reasons the learned JCA gave in explaining the context in which the observation in Alan Noorwas made, he arrived at a conclusion which the Federal Court later noted was not a correct inference to draw.
The Federal Court s stand, it would appear, portrays a correct interpretation of the letter and intent of the observation in Alan Noorand would perhaps obviate much of the uncertainty its various constructions had created.
Return to Text
n 1[2001] 2 MLJ 417.
n 2Lembaga Tatatertib Perkhidmatan Awam, Hospital Besar Pulau Pinang v Utra Badi a/l K Perumal[2000] 3 MLJ 281.
n 3Inspector General of Police & Anor v Alan Noor bin Kamat [1988] 1 MLJ 260.
n 4Utra Badi K Perumal v Lembaga Tatatertib Perkhidmatan Awam, Hospital Besar Pulau Pinang & Anor [1998] 2 CLJ 306.
n 5Ibid at 322.
n 6Order 23 states that in all disciplinary proceedings under Part II of the General Orders, no officer shall be dismissed or reduced in rank unless he has been afforded a reasonable opportunity of being heard.
n 7Article 135(2) of the Federal Constitution provides that a member of the public service shall not be dismissed or reduced in rank without being given a reasonable opportunity of being heard.
n 8Samsuddin bin Mohd Saad v Pengarah Hospital Bahagia, Ulu Kinta & Anor[1998] 7 MLJ 785.
n 9Yap Jack Keet v Ketua Polis Negara & Anor [2000] 7 CLJ 74.
n 10Supra note 2.
n 14Part III of the General Orders includes cases 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. The learned JCA stressed that in all such cases there is no second right to representation available to a public servant on the issue of punishment because O 33 expressly excludes any such right.” Ibid at 397.
n 15Supra note 2 at 296.
n 16See for example Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan[1998]1 MLJ 261; Hong Leong Equipment Sdn Bhd v Liew Fook Chuan [1996] 1 MLJ 481; Raja Abdul Malek Muzaffar Shah bin Raja Shahruzzaman v Setiausaha Suruhanjaya Pasukan Polis & Ors [1995] 1 MLJ 308.
n 17Rama Chandran v The Industrial Court of Malaysia [1997]1 MLJ 145.
n 18In a recent case the Court of Appeal noted: A number of our [Malaysian] decisions have conferred a broad and liberal interpretation upon art 5(1) and 8(1)…The latter art in particular has the effect of ensuring fairness in all forms of state action and is of wide sweep: Deputy Chief Police Officer, Perak & Anor v Ramesh a/l Thangaraju[2001]1 MLJ 161, at 166.
n 19Supra note 3.
n 20Order 30(2) of the General Orders requires the Disciplinary Authority to send to the officer who is subject to disciplinary proceedings a statement in writing, prepared, if necessary, with the aid of the Legal Department, specifying the grounds on which it is proposed to reduce the officer in rank or to dismiss him.
n 21[1987] 1 CLJ 51 at 56.
n 22Supra, note 3.
n 23Ibid, at 265.
n 24Supra, note 4 at 318.
n 25Supra, note 4.
n 26Ibid, at 86.
n 27Supra, note 8.
n 28Ibid, at 805-806.
n 29Ibid, at 805.
n 30The appropriate authority was the IGP and not the Deputy IGP, as the Police Force Commission had delegated its disciplinary powers to the former.
n 31Supra, note 2, at 293.
n 32Ibid, at 301.
n 33Supra, note 1, 432.
n 34Ibid, at 439.
n 35Ibid, at 440.
n 36Ibid, at 442.
n 37Ibid, at 429.
n 38Ibid, at 431.
n 39Ibid, at 429.
n 40Mohd Noor bin Abdullah v Nordin bin Haji Zakaria [2001] 2 MLJ 257, 265.
n 41See for a similar approach, Kang Hwee Gee J s remarks on this point in Samsuddin, a case cited with approval by the Federal Court in Utra Badi: supra note 8, at 803.
n 42See Ghazi bin Mohd Sawi v Mohd Haniff bin Omar, Ketua Polis Negara, Malaysia & Anor [1994] 2 MLJ 114.
n 43Twist v Randwick Municipal Council [1976] 136 CLR 106 at 110.
n 44Lloyed v McMahon & Anor [1987] AC 625.
n 45See, eg: Raja Abdul Malek Muzaffar Shah bin Raja Shahruzzaman v Setiausaha Suruhanjaya Pasukan Polis & Ors[1995] 1 MLJ 308; Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor[1996] 1 MLJ 261; Deputy Chief Police Officer, Perak v Ramesh a/l Thangaraju[2001] 1 MLJ 161; [2001] 2 MLJ 257.
n 46Supra, note 2, at 296.
n 47Deputy Chief Police Officer, Perak v Ramesh a/l Thangaraju[2001] 1 MLJ 161, at 166.
n 48Rohana bte Ariffin & Anor v Universiti Sains Malaysia [1989] 1 MLJ 487.
n 49Marie Fox and Christine Bell, Learning Legal Skills, Blackstone Press Limited, 3rd ed 1999, at 33.
n 50Co-operative Central Bank Ltd v Feyen Development Sdn Bhd [1997] 2 MLJ 827.
n 51Ibid, at 835-836.
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