DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR [BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS] PERMOHONAN UNTUK SEMAKAN KEHAKIMAN NO. R2-25-172-08/2013
Dalam perkara permohonan untuk kebenaran/perintah-perintah Certiorari dan Mandamus berkenaan Awad No: 856 tahun 2013 bertarikh 21.5.2013 yang diterima pada 27.5.2013 dibuat dalam kes Mahkamah Perusahaan No. 23/4-355/2011;
Dalam perkara Seksyen 20 Akta Perhubungan Perusahaan, 1967;
Dalam perkara mengenai Seksyen 44 (1) Akta Relief Spesifik, 1950.
Dalam perkara mengenai Jadual 1, Akta Mahkamah Kehakiman, 1964.
Dalam perkara mengenai Aturan 53 Kaedah-Kaedah Mahkamah 2012;
Dalam perkara Aturan 1 A (1) dan Aturan (1) (2) (3) Kaedah-Kaedah Mahkamah 2012
STANLEY A/L SAVURIYAR … PEMOHON
1. DIGI TELECOMMMUNICATION SDN BHD
2. MAHKAMAH PERUSAHAAN, MALAYSIA … RESPONDEN-
GROUNDS OF JUDGMENT
1. This is an application by, the Applicant, Stanley a/l Savuviyar (“the Applicant”) for judicial review under Order 53 (3) of the Rules of Court 2012 (“RoC 2012”) for following orders:-
1.1. An order for certiorari to quash the Award No. 856 Year 2013 dated 21st May 2013 vide Industrial Court Case No. 23/4-355/2011 which had decided that the dismissal of the Applicant was with just cause and excuse and consequentially to determine the relief this Court deems fit;
1.2. In the alternative, a Mandamus be issued to direct the Registrar of the Industrial Court to fix the Industrial Case No. 23/4-355/2011 for the hearing of the reliefs sought by the Applicant which are deemed fit before another Chairman;
1.3. All necessary and consequential orders; and
1.4. Costs in the cause.
2. For the purpose of this judicial review application the following documents were filed and referred to by this Court:
2.1. The Application for Judicial Review dated 12th August 2013 (“Enclosure 1”);
2.2. Statement pursuant to Order 53 Rule 3 (2) of the Rules of Court 2012 (“Enclosure 2”);
2.3. Affidavit In Support affirmed by Stanley A/L Savuriyar on 12th August 2013 (“Enclosure 3”);
2.4. Respondent’s Affidavit in Reply affirmed by Gowri A/P Balasubramaniam dated 9th May 2014 (“Enclosure 6”) ;
2.5. Applicant’s Affidavit in Reply affirmed by Stanley A/L Savuriyar on 18th June 2014 (“Enclosure 7”).
3. The facts leading to the filing of the judicial review application could be stated as follows:
3.1. The Applicant commenced employment with the 1st Respondent (“the Respondent”) on 1st November 1999 as an Internal Audit Officer. Around 2007 he was promoted to the post of Procurement Senior.
3.2. Sometime in September 2008, the Respondent received an anonymous e-mail pertaining to allegations of corrupt practices
involving the Applicant’s overseas trips. The Respondent then conducted an investigation and as a result of the investigation on 13th April 2009 a show cause letter and notice of suspension were issued to the Applicant.
3.3. There were two (2) charges proffered against the Applicant. The 1st charge related to the car loan subsidy of RM50.00 per month as a contribution to the Applicant’s monthly car loan instalment which the Applicant continued to receive from the Respondent without obtaining the approval of the Respondent despite the fact that his car was stolen and the car loan had ceased.
3.4. The second charge related to breach of the code of conduct on corruption where the Applicant was alleged to have accepted a fully paid trip from one of the vendors of the Respondent to attend a conference in Singapore.
3.5. The Applicant had offered his explanations, however the Respondent was not satisfied with the explanations. A domestic inquiry was conducted on 27th April 2009 and in the course of the proceedings the Applicant had pleaded guilty to both the charges. Pursuant to the findings of the domestic inquiry, the Applicant was terminated from the services of the Respondent by a letter dated 28th April 2009.
3.6. The Applicant made a representation to the Minister for Human Resources pursuant to section 20 (1) of the Industrial Relations Act 1967 (“the Act”) who then referred the matter to the Industrial Court for adjudication.
3.7. The representation was heard by the Learned Industrial Court Chairman on 9th January 2013 and 27th February 2013 respectively and on 21st May 2013 the learned Industrial Court Chairman found that the Applicant had flouted the Respondent’s anti-corruption policy. Accordingly, the learned Industrial Court Chairman held that the Applicant’s dismissal was with just cause and excuse.
3.8. Aggrieved by the decision of the Award of the Industrial Court, on 12th August 2013 the Applicant filed this Judicial Review Application.
4. Judicial review is not an appeal or “rehearing” of the case at the Industrial Court. This principle was affirmed by the Court of Appeal in Menara PanGlobal Sdn Bhd v. Arokianathan Sivapiragasam  2 MLRA 398:
“In Harpers Trading (M) Sdn Bhd v. National Union of Commercial Workers  1 MLJ 417, in delivering the
judgment of the Supreme Court, Jemuri Sarjan SCJ (as he then was) said (atp. 419):-
It seems to us that it should be treated as trite law that judicial review is not an appeal from a decision but a review of the manner in which the decision was made and the High Court is not entitled on an application for judicial review to consider whether the decision itself, on the merits of the facts, was fair and reasonable. There is no dearth of authorities on the proposition…;
In the authorities quoted it is not the function of the High Court in exercise of its supervisory jurisdiction to hear a dispute “de novo” and decide it on its merits.”
5. Thus, it is not the duty of the High Court to utilize judicial review proceedings as a cloak to entertain an appeal against findings of fact made by the Industrial Court.
6. It is a cardinal principle in judicial review proceedings that the High Court would not interfere with findings of fact, particularly in relation to the credibility of witnesses, made by the Industrial Court. It is therefore settled law that the High Court will not interfere with a decision of the Industrial Court unless it can be conclusively established that the decision is infected with “errors of law”.
7. The correct statement of law pertaining to judicial review had been succinctly stated by His Lordship Justice Sri Ram in the Supreme
Court case of Kumpulan Perangsang Selangor Bhd v. Zaid bin Haji Mohd Noh (1997) 2 CLJ at page 23 to 24 as:
“Until very recently, it was generally thought that when a decision is challenged on the grounds of “wednesbury unreasonableness”, the court is confined to an examination of the decision-making process and not the merits of the decision itself. That is an error approach without analyzing later judicial pronouncements that had addressed the subject. The fallacy of the doctrine that judicial review is always confined to the decision-making process and never the merits of the decision itself was exploded in Rama Chandran v. The Industrial Court of Malaysia & Anor, Supreme Court Civil Appeal No. 02-13-1994, yet unreported; [Ed Note: Since reported in  1 AMR 6:433] Edgar Joseph Jr FCJ who formed the majority, explained the true principle in language that merits recollection: ( 1 AMR 6:433 at page 469 line 45)
“It is often said that judicial review is concerned not with the decision-making process. (see e.g Chief Constable of North Wales v. Evans (1982) 1 WLR 115). This proposition, at full face value, may well convey the impression that the judicial proceedings is confined to cases where the aggrieved party has not yet received fair treatment by the authority to which he has been subjected. Put differently, in the words of Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service (1985) AC 374, where the impugned decision is flawed on the ground of procedural impropriety.
But Lord Diplock’s other grounds for impugning a decision susceptible to judicial review make it abundantly clear that such a decision is also open to challenge on grounds of ‘illegality’ and ‘irrationality’ and in practice, this permits the court to scrutinize such decisions not only for process, but also for substance.”
(Also refer to Majlis Perbandaran Seberang Perai v. Treeplant Sdn. Bhd. 3 CLJ 837 at page 847).
8. The law is now settled that a decision of an inferior tribunal is amenable to judicial review if it could be shown that the said tribunal had acted upon the facts which did not justify the decision or when the said tribunal had arrived at its findings by taking into consideration irrelevant matters or had failed to take into consideration relevant matters. The Court of Appeal in Airspace Management Services Sdn Bhd v, Col (B) v. Colonel Harbans Singh Chingar Singh  4 CLJ 77 held that in exercising its function in a judicial review application High Court is competent to disagree with the inferior courts on the conclusions or inferences drawn by the said tribunal from the proved and/or admitted evidence on the ground that no reasonable tribunal similarly circumstanced would have arrived at such conclusion or drawn such an inference.
9. The above proposition of law had been reinforced in the Federal Court case of Ranjit Kaur a/p S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd  6 MLJ page 1 where the Federal Court had endorsed the principle that the findings of facts of the Industrial Court
based on the credibility of witnesses ought not to be disturbed by the reviewing judge unless they were grounded on illegality or plain irrationality, even where the reviewing judge might not have come to same conclusion (see William Jacks & Co (M) Sdn Bhd v. Balasingam  7 MLJ 1;  3 CLJ 235; National Union of Plantations Workers v. Kumpulan Jerai Sdn Bhd, Renggam  2 MLJ 144;  1 CLJ 681; Quah Swee Khoon v. Sime Darby Bhd  2 MLJ 600;  1 CLJ 9). The Federal Court had also gone further to state that there is an exception to the above proposition, which merits intervention by the reviewing judge. This could be gauged from the following passage of the judgment:
“It is clear from the above authorities that the scope and ambit of Rama Chandran had been clearly explained and clarified. Decided cases cited above have clearly established that where the facts do not support the conclusion arrived at by the Industrial Court, or where the findings of the Industrial Court had been arrived at by taking into consideration irrelevant matters, and had failed to consider relevant matters into consideration, such findings are always amenable to judicial review.”
GROUNDS FOR THE APPLICATION
10. The grounds in support of Enclosure 1 were as stated in the Enclosure 3 and the Statement under Order 53 (3) (2) RoC 2012 (“Enclosure 2”) respectively. These grounds could be summarized as follows:
10.1. The charge sheet did not contain sufficient details and its author was not called as a witness during the proceedings before the 2nd Respondent;
10.2. The persons involved in the decision to dismiss the Applicant were not called as a witness. Therefore section 114 (g) of the Evidence Act 1950 could be invoked against the Respondent;
10.3. The Applicant’s trip to Singapore sponsored by Emerson did not amount to a bribery but was merely a “customary business gift”;
10.4. The sponsorship of the Applicant’s trip to Singapore by Emerson had not in any way affected the reputation of the Respondent. Neither did it accord Emerson an unfair advantage against the Respondent’s Anti-Corruption Policy;
10.5. The Applicant had obtained prior consent from his supervisors to attend the conference in Singapore; and
10.6. The Applicant had no knowledge of the Anti-Corruption Policy and/or the Anti-Corruption Policy was non-existent at the time the action was taken against the Applicant.
DECISION OF THE COURT
11. Having perused all the relevant documents filed herein, read the written submissions and heard the oral submissions of the learned Counsels of the Applicant and the Respondent and guided by the high authorities discussed above the following were my findings.
12. In resolving the issues at hand the 2nd Respondent was vested with the two fold functions, firstly it had to determine if the alleged misconducts and/or irregularities complained of were in fact committed by the workman and secondly whether such grounds constitute just cause and excuse for the dismissal of the workman. This principle had been laid down in the case of Wong Yuen Hock v. Syarikat Hong Seong Assurance Sdn Bhd  3 CLJ 344.
13. In a nutshell, in exercising its powers under section 20 of the Act, the Industrial Court had a duty to evaluate the evidence before it against the claimant’s pleaded case and has at the back of its mind these two fold functions.
14. A perusal of the Statement of Case dated 30th June 2011 would show that none of the grounds stated under paragraph 10 above were pleaded by the Applicant in his Statement of Case dated 30th June 2011. Therefore, it is not opened for the Applicant to rely on the above grounds to challenge the decision of the 2nd Respondent at this juncture. It had been held in Ranjit Kaur a/p S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [supra]; also see Rama Chandran v. Industrial Court of Malaysia & Anor  1 CLJ at page 147 that
in the case before the Industrial Court the pleadings are as important as the pleadings in a Civil Court where the parties before the Industrial Court are expected to plead each party’s case and the Industrial Court is only bound to resolve the issues between these parties within the four corners of these pleadings. This is to prevent element of surprise to the opponent as well as to enable the other party to adduce evidence based on pleaded facts and issues only.
15. Notwithstanding the above, I would now peruse the grounds of challenge mounted by the Applicant to examine if this Court ought to interfere with the decision of the 2nd Respondent or otherwise.
The charge sheet did not contain sufficient details and its author was
not called as a witness during the proceedings before the 2nd
16. It was the contention of the Applicant that the charges levelled against him lacked material particulars to enable him to understand the charges, which were proffered against him. Further, the author of the Charge Sheet was not called as a witness.
17. Upon perusal of the Charge Sheet, I am satisfied that the two charges proffered against the Applicant contained the material facts such as the date of the alleged incident, the name of the company which had provided the sponsorship, the particulars of the sponsorship as well as the nature of the misconduct the Applicant
was alleged to have committed. These charges had been drafted with clarity and had brought to the attention of the Applicant the two charges levelled against him.
Grounds 2 and 5
The persons involved in the decision to dismiss the Applicant were not called as a witness. Therefore section 114 (g) of the Evidence Act 1950 could be invoked against the 1st Respondent.
The Applicant had obtained prior consent from his supervisors to attend the conference in Singapore.
18. With regard to the contention of the Applicant that the 2nd Respondent had erred in his decision as the 2nd Respondent had not invoked the presumption under section 114 (g) of the Evidence Act 1950 against the Respondent due to the failure on the part of the Respondent to call material witnesses namely Adzhar bin Ibrahim, Joseph Lim and Mohd Azman bin Abd. Rahman to prove that the Applicant had in fact informed his immediate superior one Mohd Azman bin Abd. Rahman that he would be attending the conference in Singapore and he was given the verbal permission to attend the conference, I am of the view that this point had been considered by the 2nd Respondent in the Award. A perusal of the Award disclosed that in arriving at its decision the 2nd Respondent had taken into consideration the following:
18.1. In the course of the proceeding before the 2nd Respondent, the Applicant had not mentioned that he had informed his immediate superior that the trip to Singapore would be sponsored by Emerson;
18.2. The findings by the 2nd Respondent that the Applicant’s Head of Department was one Joseph Lim and there was no evidence that the Applicant had obtained an express permission from his Head of Department to attend the conference;
18.3. The 2nd Respondent was of the view that Mohd Azman bin Abd Rahman was a relevant witness for the Applicant but the Applicant had not called this witness to testify for him;
18.4. It was the Applicant who had averred that he had informed his immediate superior, who had given him a verbal consent, the burden was on the Applicant to prove he had obtained the permission of one, Mohd Azman bin Abd Rahman to go on the trip sponsored by Emerson;
18.5. The fact that the Applicant had gone on a trip to Singapore sponsored by Emerson and that the Applicant had not obtained the permission of his Head of Department had been proven;
18.6. According to the 2nd Respondent this was based on the equitable principle that “he who asserts must prove”. Therefore, the Applicant ought to have called this witness to prove his case. Since this witness was not called there was no evidence before the 2nd Respondent that permission had been granted by the Respondent for the Applicant to attend the conference in Singapore to be sponsored by Emerson;
18.7. Section 114 (g) of the Evidence Act 1950 ought not to be invoked automatically. It is invoked as a matter of discretion;
18.8. There were other witnesses called by the Respondent to substantiate the allegation against the Applicant. They were the Head of Industrial Relations Department of the Respondent, one Madam Gowri Balasubramaniam, the Investigator, Miss Helen Quat Li Huang and the Head of the Respondent’s Security, one Mr. Saiful Ahmad bin Mohamad;
18.9. The presumption under section 114 (g) of the Evidence Act 1950 was not invoked as there was other evidence available which had been led by the Respondent to prove the charges against the Applicant;
18.10. Further, the inference could not be reconciled with the actual evidence placed before the 2nd Respondent. In view of the evidence having been led by the Respondent it would not be
reasonable for the 2nd Respondent to draw adverse inference against Respondent; and
18.11. Further the 2nd Respondent could not infer that that the Applicant did not accept a sponsored trip when the Applicant himself had admitted it.
19. As there was sufficient hard evidence to establish the charges against the Applicant, the 2nd Respondent was right in not invoking the presumption under section 114 (g) of the Evidence Act 1950 against the Respondent (see Nakai Worsted Spinning (Trengganu) Sdn Bhd v. Zainal Omar  4ILR 2432).
Grounds 3, 4 and 6
The Applicant’s trip to Singapore sponsored by Emerson did not amount to a bribery but was merely a “customary business gift
The sponsorship of the Applicant’s trip to Singapore by Emerson had not in any way affected the reputation of the Respondent. Neither did it accord Emerson an unfair advantage against the Respondent’s Anti-Corruption Policy.
The Applicant had no knowledge of the Anti-Corruption Policy and/or the Anti-Corruption Policy was non-existent at the time the action was taken against the Applicant.
20. The 2nd Respondent had sustained the Applicant’s dismissal with respect to the 2nd charge. This charge is related to the fact that the Applicant had accepted invitation from one of the Respondent’s vendors, namely Emerson Network Power (Malaysia) Sdn Bhd to attend the Communication Asia Conference in Singapore. The Applicant was alleged to have accepted the offer by Emerson to pay for the Applicant’s flight to Singapore, his accommodation for one night in Meritius Mandarin Hotel on 18th June 2008, his meals and entertainment on 18th and 19th June 2008 respectively. In doing so the Applicant was alleged to have accepted inappropriate gifts and/or business courtesies for his personal advantage without the permission of the Respondent.
21. Based on the Award made by the 2nd Respondent the followings were disclosed:
21.1. Emerson’s Travel Expense Report disclosing monies paid for the Applicant’s flight tickets, accommodation and meals during the trip to Singapore (see page 79, Exhibit “S-7” of Enclosure 3). This is further supported by the receipts (see pages 80-84 and Emerson’s internal email at page 85);
21.2. The Applicant’s Statement in Examination recorded by Respondent’s Quality & Assurance Department where the Applicant had stated that he had refused the offer by Emerson and had in fact attended the conference at his own expense (see page 92, Exhibit “S-7” of Enclosure 3);
21.3. The Statement in Examination of Emerson’s Sales Manager where she had admitted that Emerson had sponsored the Applicant for the trip to Singapore (see page 99-102 of Exhibit “S-7” of Enclosure 3);
21.4. Despite having denied earlier that the expenses for the trip was paid by Emerson, the Applicant had admitted that he had accepted Emerson’s sponsorship for the trip to Singapore (see page 137 of Exhibit “S-7” of Enclosure 3); and
21.5. In his defence the Applicant had testified before the 2nd Respondent that he had informed his immediate superior officer, one Mohd Azman Abd. Rahman that he would be attending the conference in Singapore and his superior officer had given him the permission to attend the conference. There was no mentioned that the Applicant had mentioned to Mohd Azman bin Abd Rahman that the trip would be sponsored by Emerson.
22. With the above factual background before the 2nd Respondent, the Applicant’s admission before the Domestic Inquiry that he had accepted Emerson’s sponsorship despite having denied the same earlier, the overwhelming documentary and oral evidence to show the trip to Singapore was fully paid by Emerson including the flight tickets, accommodation, meals and entertainment and the position of
the Applicant, a senior officer of the Respondent who was in charge of the Procurement Department which handled contracts and tenders involving the Respondent’s vendors and suppliers, the 2nd Respondent was justified in sustaining the 2nd charge proffered against the Applicant.
23. On my evaluation of the evidence before the 2nd Respondent, I could not find any ground to interfere with the finding of facts by the 2nd Respondent as the same had been supported by evidence both testimonial and documentaries. Further, it is not the duty of this Court to interfere merely because this Court might come to different conclusions on facts, on the basis of the same evidence. As the weighing and assessing of the evidence of the witness is the function of the Industrial Court, I am not in a position to interfere with the findings and evaluation of the facts by the 2nd Respondent. Having examined the factual matrix before the 2nd Respondent as well as the manner the Award was made I am satisfied that the Award, which the Applicant sought to quash was not tainted with what Lord Diplock described in Council of Civil Service Unions & Ors v Minister for the Civil Service [supra] 1 AC at page 374 as “illegality’, “Irrationality” and “procedural impropriety”.
24. Based on the aforesaid I am satisfied on the issues that were presented before the 2nd Respondent, as discussed above, the
impugned Award is not amenable to judicial review as based on the facts presented before the 2nd Respondent, the 2nd Respondent was justified in concluding that there was misconduct on the part of the Applicant and the said misconduct had justified the dismissal of the Applicant from employment of the Respondent. Therefore, Enclosure 10 was dismissed with costs. After hearing a brief submission on the issue of costs I have awarded costs of RM4,000.00 to the Respondent.
(ASMABI BINTI MOHAMAD)
HIGH COURT SPECIAL AND APPELLATE POWERS
Date of Grounds
30th July 2015 11th February 2015
Date of Decision Date of Notice of Appeal
11th March 2015
1. Messrs P. Kuppusamy & Co.
Advocate & Solicitor
For and on behalf the Applicant
No. 75 B, Jalan 1/12
46000 Petaling Jaya
[Ref: KP/4212/1907/2013] … [Mr. Ramdhari A/L Jang Bahadur Singh]
2. Tetuan R. Sivagnanam & Associates Advocate & Solicitor For and on behalf of the 1st Respondent Tingkat 7 Wisma Genting No. 28, Jalan Sultan Ismail 50250 Kuala Lumpur
[Mr. Rutheran Sivagnanam]