MORNI BIN LIDIN 1. ) DATO' SAKIB BIN KUSMI PENGERUSI LEMBAGA TATATERTIB KUMPULAN SOKONGAN (NO. 1), JABATAN IMIGRESEN MALAYSIA, PUTRAJAYA 2. ) DATO' SERI HJ. MUSTAFAR BIN HJ. ALI PENGERUSI LEMBAGA TATATERTIB KUMPULAN SOKONGAN (NO. 1), JABATA

BA-25-58-10/2018 Kand. 107 28/12/2022 08:50:56 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SEMAKAN KEHAKIMAN NO.: BA-25-58-10/2018 Dalam perkara permohonan oleh MORNI BIN LIDIN (No. KP: 781003-13-5563) untuk mendapatkan satu Perintah Deklarasi dan/atau Certiorari dan/atau Mandamus Dan Dalam perkara keputusan yang dibuat oleh Lembaga Tatatertib Kumpulan Sokongan (No. 1), Jabatan Imigresen Malaysia pada 7 Ogos 2017 dan keputusan yang dibuat oleh Lembaga Rayuan Tatatertib Perkhidmatan Awam, Suruhanjaya Perkhidmatan Awam Malaysia pada 15 Januari 2018 Dan Dalam perkara Perintah-Perintah Am Bab D: Peraturan-Peraturan Pegawai Awam (Kelakuan & Tatatertib) 1993 dan Peraturan-Peraturan Lembaga Tatatertib Perkhidmatan Awam 1993 Dan Dalam Perkara 5, 8 dan 135 Perlembagaan Persekutuan Dan Dalam Perkara Aturan 53 Kaedah-Kaedah Mahkamah 2012 ANTARA MORNI BIN LIDIN [No. K/P: 781003-13-5563] …PERAYU DAN 1. DATO’ SAKIB BIN KUSMI Pengerusi Lembaga Tatatertib Kumpulan Sokongan (No. 1) Jabatan Imigresen Malaysia, Putrajaya. 2. DATO’ SERI HJ. MUSTAFAR BIN HJ. ALI Pengerusi Lembaga Tatatertib Kumpulan Sokongan (No. 1) Jabatan Imigresen Malaysia, Putrajaya. 1 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 3. LEMBAGA TATATERTIB KUMPULAN SOKONGAN (NO. 1) Jabatan Imigresen Malaysia, Putrajaya. 4. PENGERUSI LEMBAGA RAYUAN TATATERTIB PERKHIDMATAN AWAM Suruhanjaya Perkhidmatam Awam 5. LEMBAGA RAYUAN TATATERTIB PERKHIDMATAN AWAM Suruhanjaya Perkhidmatam Awam, Malaysia 6. KERAJAAN MALAYSIA …RESPONDEN-RESPONDEN JUDGEMENT [1] This judicial review application relates to the dismissal of the applicant from his employment as an Immigration officer. Background [2] Pursuant to Order 53 Rule 3(1) of the Rules of Court 2012 the applicant had on 2.10.2018 filed an ex-parte application for leave to commence judicial review proceedings against the respondents. The judicial review application sought to challenge the following: (i) the Disciplinary Board’s decision on 7.8.2017 which found the applicant guilty and dismissed the applicant from service pursuant to regulation 38(g) of Public Officers (Conduct & Discipline) Regulation 1993 [P.U.(A)395/1993] in force from 7.8.2017; and (ii) the Disciplinary Appeal Board’s decision on 15.1.2018 which found no good grounds to change the decision of the third respondent and affirmed the decision of the third respondent. [3] The learned High Court Judge had on 22.1.2019 made the following orders: (i) granted leave for the applicant to commence judicial review proceedings against the first to the third respondent and the fifth respondents seeking the following reliefs: 2 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal (a) an order of Certiorari to quash the Impugned Decision; (b) a declaration and/or mandamus order that the applicant be reinstated to his last post as an “Immigration Officer Grade KP22” without the loss of seniority, rank, salary increment, salary, emolument and other benefits; (c) further reliefs arising from the order of certiorari/ declaration/ mandamus that – (i) an enquiry for the purpose of determining the arrears in salary inclusive of salary increment, emoluments, allowances and other benefits that the applicant is entitled to receive from the date of dismissal (7.8.2017) and/or from the last date the applicant received his emoluments until full settlement; (ii) interest at the rate of 5% per annum with respect to the total monies in arrears from the date of dismissal (7.8.2017) and/or from the last date the applicant received his emoluments until full settlement; (ii) Refused to grant leave to – (a) commence judicial review proceeding against the fourth respondent i.e. Chairman of the Disciplinary Appeal Board of the Public Service, Public Service Commission, Malaysia (b) seek for damages for wrongful dismissal; (c) seek for general damages and/or aggravated damages and/or exemplary damages and/or punitive damages as the respondents and agents/staff of the sixth respondent have acted in a lackadaisical attitude and was mala fide with respect to the entire disciplinary proceeding including the disciplinary investigation with the sole intention of dismissing the applicant which as a result has caused the applicant’s mental, emotional and psychological trauma, severe shock and mental anguish daily until to date due to his dismissal from service. 3 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Brief Facts [4] The applicant, an Immigration officer (Grade KP22) was dismissed on 7.8.2017 by the Disciplinary Board for lacking efficiency or industry and negligent in performing his duties when the appellant irregularly approved two (2) applications for Malaysian Passport to foreigners. [5] The Disciplinary Board’s decision was affirmed by the Disciplinary Appeal Board on 15.1.2018. Grounds for this Judicial Review [6] The grounds for this judicial review as put forth by the applicant are reproduced below: ““ILLEGALITY” ISU 1 – Sama ada tindakan tatatertib terhadap pemohon tidak menurut undang-undang yang terpakai pada masa yang material dan melanggar Perkara 5(1) Perlembagaan Persekutuan? ISU 2 – Sama ada keseluruhan prosiding tatatertib dari awal sehingga akhir terhadap pemohon adalah tidak sah, tidak menurut undang- undang ‘void ab initio’, dicemari dengan ‘illegality’, ‘Disciplinary Board was not properly constituted’ serta melanggar prinsip keadilan asasi kerana: (a) penentuan di bawah Peraturan 35 Peraturan-Peraturan Pegawai Awam (Kelakuan & Tatatertib) (Pindaan 2002) dibuat oleh pihak berkepentingan. (b) keputusan buang kerja tidak diputuskan oleh pihak yang sama yang mengeluarkan surat tunjuk sebab? “PROCEDURAL IMPROPRIETY” ISU 3 – Sama ada wujud ‘procedural impropriety’ kerana ketidakpatuhan Peraturan 37(2) Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) (Pindaan) 2002? ISU 4 – Sama ada wujud perlanggaran prinsip keadilan asasi dari aspek ‘statutory notice’: (a) Surat tunjuk sebab yang cacat di muka rekod; (b) pertuduhan tatatertib yang cacat dari segi kandungan, kehendak undang-undang, berbentuk ‘afterthought’, mengelirukan, tidak mengandungi butir-butir penuh dan material, tidak berasas dan tidak boleh dipertahankan dalam undang-undang. 4 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal ISU 5 – Sama ada wujud perlanggaran peruntukan statut serta ‘Anisminic error’ apabila Lembaga Tatatertib telah gagal mengambilkira ‘relevant considerations’ serta telah mengambilkira ‘irrelevant considerations’ dalam membuat keputusan tanpa memberikan peluang untuk pemohon ‘rebut, explain or controvert’? ISU 6 – Sama ada terdapatnya perlanggaran keadilan asasi kerana gagal menubuhkan satu Jawatankuasa Penyiasatan dan/atau memberikan pendengaran lisan walaupun telah dipohon? “IRRATIONALITY & PROPORTIONALITY” ISU 7 – Sama ada prinsip ‘Wednesbury Unreasonableness’ dan ‘doctrine of proportionality’ terpakai dalam kes pemohon? ISU 8 – Sama ada wujud perlanggaran prosedur dan prinsip keadilan asasi di atas kegagalan memberikan Alasan Keputusan? “PROCEDURAL IMPROPRIETY” ISU 9 – Sama ada wujud ‘condonation’ dalam kes pemohon? ISU 10 – Sama ada kehadiran pihak berkepentingan mencacatkan prosiding tatatertib?” [7] This court is of the view these grounds maybe divided into the following main grounds which are as follows: (i) Illegality; (ii) Procedural Impropriety; (iii) Irrationality and Proportionality. Legal Principles relating to Judicial Review [8] Before this court proceeds to consider this case, it would be prudent to consider the legal principles relating to an application for judicial review. [9] Order 53 of the Rules of Court 2012 provides for the procedures for an application for judicial review. 5 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [10] The grounds for an application for judicial review are illegality, irrationality, procedural impropriety and proportionality. These grounds were laid down by Lord Diplock in the case of Council of Civil Service Unions & Ors v Minister of Civil Service [1985] AC 374 which was adopted by the Federal Court in the case of R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 as follows: “In this context, it is useful to note how Lord Diplock (at pp 410– 411) defined the three grounds of review, to wit, (i) illegality, (ii) irrationality, and (iii) procedural impropriety. This is how he put it: By 'illegality' as a ground for Judicial Review I mean that the decision maker must understand directly the law that regulates his decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of a dispute, by those persons, the judges, by whom the judicial power of the state is exerciseable. By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the courts' exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v Bairstow [1956] AC 14, of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though undefinable mistake of law by the decision maker. 'Irrationality' by now can stand on its own feet as an accepted ground on which a decision may be attacked by Judicial Review. I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failing to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to Judicial Review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. Lord Diplock also mentioned 'proportionality' as a possible fourth ground of review which called for development.” [Emphasis added] 6 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [11] A perusal of the Federal Court’s decision in R Rama Chandran v The Industrial Court of Malaysia & Anor (supra) indicates that the courts are permitted to scrutinize the challenged decision not only for process but also for substance. In other words, the Courts are allowed to go into the merit of the matter. Nonetheless, the Federal Court in subsequent decisions held that not every case is amenable to such approach and merits can only be scrutinized in the most appropriate of cases. [12] In the Federal Court case of Ranjit Kaur a/p S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 6 MLJ 1 the court stated the following: “[16] The Rama Chandran decision has been regarded or interpreted as giving the reviewing court a license to review without restrain decisions for substance even when the said decision is based on finding of facts. However, post Rama Chandran cases have applied some brakes to the courts’ liberal approach in Rama Chandran. The Federal Court in the case of Kumpulan Perangsang Selangor Bhd v Zaid Noh [1997] 1 MLJ 789; [1997] 2 CLJ 11 after affirming the Rama Chandran decision held that there may be cases in which for reason of public policy, national interest, public safety or national security the principle in Rama Chandran may be wholly inappropriate. [17] The Federal Court, in Petroliam National Bhd v Nik Ramli Nik Hassan [2004] 2 MLJ 288; [2003] 4 CLJ 625, again held that the reviewing court may scrutinise a decision on its merits but only in the most appropriate of cases and not every case is amenable to the Rama Chandran approach. Further, it was held that a reviewing judge ought not to disturb findings of the Industrial Court unless they were grounded on illegality or plain irrationality, even where the reviewing judge might not have come to the same conclusion.” [Emphasis added] [13] Founded on these principles, this court will now proceed to analyse the grounds presented by the applicant in this application for judicial review. Analysis and Findings (i) Illegality [14] The first ground contended by the applicant was that the disciplinary proceeding had not been carried out in accordance to the applicable law and violated Article 5 of the Federal Constitution. 7 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [15] To support this argument, it was submitted that when the first respondent to third respondent had conducted the disciplinary proceedings against the applicant, the Public Officers (Conduct and Discipline) Regulations 1993 [P.U (A) 395/1993] (“1993 Regulation”) had been applied. It was argued the correct law to be applied would be the Public Officers (Conduct and Discipline) Regulations (Amendment) 2002 [P.U.(A)246/2002]. (“2002 Regulation”). [16] It was contended by the applicant that the disciplinary proceedings had used the wrong law which was no longer in effect at the material time. Hence, it was argued the 2002 Regulation would be the correct law to be used during the disciplinary proceedings. [17] In this regard, this court observes that the 2002 Regulation is the newer regulation compared to the 1993 Regulation. This court further observes that the 2002 Regulation is an amendment. This is clear from the title of the 2002 Regulation. [18] Reference is made to the 2002 Regulations which provides as follows: “Amendment of regulation 2 2. The Public Officers (Conduct and Discipline) Regulations 1993 [P.U. (A) 395/1993], which in these Regulations are referred to as the “principal Regulations”, are amended in regulation 2 by deleting sub- regulation 2(2). [19] From the provision above, it can been seen that the 1993 Regulation is the principal regulation. This indicates that the 1993 Regulation is being amended. In the view of this court, the 2002 Regulation amended the 1993 Regulation. The 2002 Regulation does not replace the 1993 Regulation. The 1993 Regulation is still in force with the amendments from the 2002 Regulation. [20] Moreover, in the case of Khalid Mat v. Suruhanjaya Pasukan Polis Diraja Malaysia & Ors [2011] 7 CLJ 613 her Ladyship Aziah Ali J held: "[8] ... The 2002 Regulations are regulations amending the 1993 Regulations. Learned Senior Federal Counsel relies on my judgment in the unreported case of Annathurai Marimuthu v. Pengerusi Lembaga Tatatertib Polis DiRaja Malaysia, Bukit Aman & 2 Ors (Permohonan Semakan Kehakiman No. R1-25-326-2008) where in that case counsel for the applicant herein represented the applicant and had raised a similar argument essentially that the disciplinary action was instituted 8 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal under regulations which were not applicable to the applicant. In my judgment I said as follows: The Public Officers (Conduct And Discipline)(Amendment) Regulations 2002, as its name indicates, is an amending law. The purpose of an amending law is to amend existing legislation. Amending laws describe changes in a particular existing principal law. Hence in section 2 of the 2002 Regulations, the 1993 Regulations is referred to the as the "principal Regulations". Vide the 2002 Regulations new provisions were introduced and various provisions then existing in the 1993 Regulations were substituted with new provisions. For example, section 8 of the 2002 Regulations substituted the existing Part V of the 1993 Regulations with a new Part V. The Interpretation Acts 1948 and 1967 (Act 388) provides vide section 90 as follows: 90. Construction of amending regulations. Where regulations amend other regulations, the amending regulations shall, so far as is consistent with the tenor thereof, and unless the contrary intention appears, be construed as one with the amended regulations. Hence with effect from 20.6.2002, the date the amendments came into force, the new provisions introduce vide the 2002 Regulations (the amending regulations) form part of and is to be construed as one with the 1993 Regulations (the amended regulations). The 1993 Regulations is still in force and remains as the only regulations governing the conduct and discipline of public servants until such time it is repealed. Therefore it is a misconception to treat the 2002 Regulations as substituting the 1993 Regulations. Consequently the submissions that the Disciplinary Board did not apply the correct law and had acted mechanically is without merit. I find that the Disciplinary Board had not erred in instituting disciplinary action against the Applicant under the 1993 Regulations and consequently the charges leveled against him are valid.” [Emphasis added] [21] It is clear that the 2002 Regulation is an amendment to the 1993 Regulation. The 1993 Regulation is still in force and it is therefore the correct regulation to be applied in this case. For the abovementioned 9 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal reasons, this court is of the considered view this issue raised by the applicant is unfounded and without merit. [22] The second ground in paragraph (a) raised by the applicant is that the disciplinary proceedings against the applicant was a breach of natural justice as the as the applicant alleged that Mohd Nasri bin Ishak is an interested party as he was the person who had received the complaint in his capacity as the “Pengarah Jabatan Imigresen Malaysia Wilayah Persekutuan Kuala Lumpur (Pengarah JIM WPKL)”. [23] To support his contention, the applicant relied on the Court of Appeal case of Perbadanan Pengurusan Trellises & Ors v Datuk Bandar Kuala Lumpur & Ors [2021] 3 MLJ 1 which had referred to the case of Mohamad Yusof bin A Bakar & Anor v Datuk Bandar Kuala Lumpur [2019] MLJU 1098 which held as follows: “The decision of any public authority may be reviewed on the grounds of illegality, irrationality and possibility of proportionality which permits the courts to scrutinise the decision not only for process but also for substance...More so where the respondent in the particular facts and circumstances of this appeal is an interested party in the outcome of the respondent’s decision.” [24] To consider this ground raised, this court looked at who is Mohd Nasri bin Ishak. He is the Head of Department whose approval is sought for further action once the misconduct involving his officer is brought to his attention. [25] Mohd Nasri bin Ishak is the applicant’s Head of Department and in that capacity is also the Chairman of the Disciplinary Board for the Support Group (No.2) as prescribed in the Schedule to the Public Services Disciplinary Board Regulation 1993 [P.U.(A)396/1993]. However, he is not the person responsible determining whether a prima facie case exists for the purpose of issuance of the show cause letter. [26] Mohd Nasri bin Ishak is only responsible to make a determination pursuant to Regulation 35 of the 1993 Regulation whether the disciplinary offence complained of is of a nature which warrants a punishment of dismissal or reduction in rank. [27] The question of whether there exists a prima facie case against the applicant to warrant the commencement of disciplinary action by issuance of a show cause letter is the function of the Chairman of the Disciplinary 10 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Board for the Support Group (No.1) pursuant to Regulation 37(1) of P.U.(A)395/1993. [28] In the view of this court, the procedures set forth in the P.U.(A)395/1993 have been complied with and there exists no conflict of interest. [29] The second issue in paragraph (b) raised by the applicant relates to the decision to terminate the applicant was not determined by the same party that issued the show cause letter to the applicant. [30] Here, the show cause letter dated 26/2/2016 was issue by the first respondent Dato’ Sakib bin Kusmi. The decision to dismiss the applicant was made by the second respondent Dato’ Seri Hj Mustafar bin Hj Ali who was the Chairman of the Disciplinary Board with other members of the Disciplinary Board. [31] Learned counsel for the applicant argued that the rules of natural justice requires the same party to issue the show cause letter and the dismissal decision. Learned counsel alluded to the case of Hing Ah Leong v Inspector-General of Police & 2 Ors [1995] 2 AMR 1993. Founded on this case, it was submitted that the disciplinary proceedings against the applicant was tainted with illegality and was void ab initio. [32] The principles of natural justice? Comprises of nemo judex in causa sua (the rule against bias) and audi alteram partem (the right to be heard). (See: Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 1 MLJ 750. [33] The facts in this application are that the Director General of Immigration Department of Malaysia at the time of the issuance of the show cause letter is the first respondent, Dato’ Sakib Bin Kusmi (Chairman of the Disciplinary Board). At the time of the consideration of his representation for determining whether the applicant had exculpated himself, the Director General of Immigration Department of Malaysia is the second respondent i.e. Dato’ Seri Hj. Mustafar Bin Haji Ali. [34] The second respondent had carried out the function as the Chairman of the Disciplinary Board for the Support Group (No.1) pursuant to his appointment as the Director General of Immigration Department of Malaysia upon the transfer of the first respondent as reflected in Enclosure 25 where the second respondent had averred as follows: “1. Saya adalah mantan Ketua Pengarah Imigresen, Jabatan Imigresen Malaysia yang telah berkhidmat dari 1.8.2016 hingga 31.12.2018 11 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal menggantikan Ketua Pengarah Imigresen, Jabatan Imigresen Malaysia terdahulu iaitu Dato’ Sakib Bin Kusmi yang telah ditukarkan ke Jabatan Perkhidmatan Awam berkuatkuasa 1.8.2016. Saya telah dilantik sebagai Ketua Eksekutif, Pusat Pencegahan Jenayah Kewangan Nasional mulai 1.1.2019. 2. Selaras dengan pelantikan saya sebagai Ketua Pengarah Imigresen, Jabatan Imigresen Malaysia saya telah mengambil alih dan meneruskan tugas dan fungsi Dato’ Sakib bin Kusmi, Ketua Pengarah Imigresen, Jabatan Imigresen Malaysia terdahulu sebagai Pengerusi Lembaga Tatatertib Kumpulan Sokongan (No.1), Jabatan Imigresen Malaysia, Putrajaya dalam prosiding tatatertib terhadap Pemohon.” [35] In this regard, the Chairman of the Disciplinary Authority is stipulated by the Schedule to the Public Services Disciplinary Board Regulation 1993 [P.U.(A)396/1993] which requires the Chairman to be the Director General of the respective service. [36] The second respondent took over the post of Director General from the first respondent. Whilst the person may be different, it is the considered view of this court that the person signing the letter of show cause and making the decision to dismiss the applicant is the Director General of Immigration in his capacity as the Chairman of the Disciplinary Board. Hence, there is, this court opines, no breach of natural justice and consequentiality, no illegality in the disciplinary proceedings against the applicant. Procedural Impropriety [37] The next issue raised by the applicant is that there was non- compliance with Order 41 Rule 5 of the Rules of Court 2012 that the second respondent is not in the position to aver with respect to the statutory duty exercised by Mohd Nasri bin Ishak pursuant to Regulation 35 of 1993 Regulation. [38] For ease of reference, Order 41 Rule 5 of the Rules of Court 2012 is reproduced below: “Contents of affidavit (O. 41, r. 5) 5. (1) Subject to Order 14, rules 2(2) and 4(2), to paragraph (2) of this rule and to any order made under Order 38, rule 3, an affidavit may contain only such facts as the deponent is able of his own knowledge to prove. 12 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal (2) An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information of belief with the sources and grounds hereof.” [39] Regulation 35 of P.U.(A)395/1993 provides: “35. (1) Seorang pegawai yang dibebaskan oleh sesuatu mahkamah daripada pertuduhan jenayah tidak boleh dikenakan tindakan tatatertib atas pertuduhan yang sama. (2) Tiada apa-apa jua dalam subperaturan (1) boleh ditafsirkan sebagai menghalang tindakan tatatertib diambil terhadap pegawai itu atas apa-apa alasan lain yang berbangkit daripada kelakuannya berhubung dengan pertuduhan jenayah itu, sama ada berkaitan atau tidak dengan perlaksanaan tugasnya: Dengan syarat bahawa alasan-alasan bagi tindakan tatatertib itu tidak boleh membangkitkan secara substansial isu-isu yang sama dengan isu-isu yang atasnya pegawai itu dibebaskan” [40] Regulations 35 of the 1993 Regulation empowers the Chairman of the appropriate Disciplinary Authority to determine the nature of the breach of discipline, whether it warrants a punishment of dismissal or reduction in rank. [41] Reference is made to Regulations 35(1)(b) of the 1993 Regulation which states that if there is more than one tier of Disciplinary Authority in respect of the applicant, the nature of the breach of discipline is to be considered by the Chairman of the Disciplinary Authority having the jurisdiction to impose a punishment other than dismissal or reduction in rank. [42] In this case, the determination as the nature of the breach of discipline was carried out by Mohd Nasri Bin Ishak who was sitting as the Chairman of the Disciplinary Board for the Support Group (No.2) on 26.6.2015. [43] It was the second respondent who had affirmed an affidavit in reply [Enclosure 25] to adduce the Borang Penentuan oleh Pengerusi Lembaga Tatatertib Di Bawah Peraturan 35, Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993. 13 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [44] Hence, the applicant submitted that the second respondent had deposed an affidavit in a manner which is inconsistent with Order 41 Rule 5 of the Rules of Court 2012. [45] In this regard, this court made reference to the case of Pua Kim Wee v Ketua Pengarah Imigresen Malaysia & Another [2018] 4 CLJ 54 and the case of United Malayan Banking Corp v. Yap Peng Wai @ Yap Peng Hooi [1998] 5 MLJ 511. [46] The facts reveal that Mohd Nasri Bin Ishak who was sitting as the Chairman of the Disciplinary Board for the Support Group (No.2). The affidavit in reply was averred by the second respondent. The second respondent would, in the view of this court have had the facts and/or documents deposed within his knowledge. Enclosure 25, the second respondent’s affidavit in reply clearly states that the facts and documents are within the knowledge of the second respondent. [47] Founded on this, this court therefore does not find any non- compliance with Order 41 Rule 5 of the Rules of Court 2012. [48] The applicant further repeated his submission that the second respondent had directed his mind to the old law which the 1993 Regulations 1993. As this court had decided, this ground is without merit as the Public Officers (Conduct and Discipline) Regulations (Amendment) 2002 [P.U.(A)246/2002] had been incorporated into the Public Officers (Conduct and Discipline) Regulations 1993 [P.U.(A)395/1993]. This court is of the considered view that this issue is frivolous. [49] It was raised by the applicant that the show cause letter did not include a finding of a prima facie case against the applicant. To substantiate this contention, the applicant cited the case of Permohonan Semakan Kehakiman No 25-91-08/2012 Mohamad Zulkhairi bin Zolkifli (Pemohon) v Dato’ Alias bin Hj Ahmad, Pengerusi Lembaga Tatatertib Kumpulan Sokongan (No. 1), Jabatan Imigresen Malaysia, Putrajaya & 4 Lagi and the case of Kumareshan a/l Subramaniam v Dato’ Chor Chee Heung & Anor [2003] 4 MLJ 384. Founded on these cases, it was argued there was procedural impropriety. [50] A perusal of the 1993 Regulation shows that the 1993 Regulation does not stipulate that the applicant must be informed that a prima facie case had been found against him. Regulation 37(2) of the 1993 Regulation requires that if appears to the Chairman of the Disciplinary Board for the Support Group (No.1) that there exists a prima facie case against the officer, he shall direct a charge containing. 14 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [51] With regard to the case of Kumareshan a/l Subramaniam v Dato’ Chor Chee Heung & Anor [2003] 4 MLJ 384, this case involved a detention order issued by the Minister pursuant to section 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985.Hence, this court opines the facts may be distinguished from the facts of this application. [52] In relation to the case of Permohonan Semakan Kehakiman No 25- 91-08/2012 Mohamad Zulkhairi bin Zolkifli (Pemohon) v Dato’ Alias bin Hj Ahmad, Pengerusi Lembaga Tatatertib Kumpulan Sokongan (No. 1), Jabatan Imigresen Malaysia, Putrajaya & 4 Lagi, this court is of the view that this court is not bound by a decision of another High Court. [53] The fourth ground put forth by the applicant was statutory notice. The show cause letter to the applicant made reference to the word “Puan”. This was evident on the pages where the first respondent signed the letter. This was argued to be fatal and hence the dismissal of the applicant was illegal and void ab initio. [54] It was also argued that the charge against the applicant is for an offence that does not exist; namely “kurang amanah”. This was argued to be fatal and a miscarriage of justice. The disciplinary charges was said to be vague and did not mention the facts of the disciplinary offence and the grounds on which the dismissal or reduction in rank. [55] It was further submitted the charge did not state a time. And the charge stated “meluluskan permohonan PMA yang tidak teratur”. What is meant by “tidak teratur” is unclear, according to the applicant. [56] Applicant’s contention that the show cause letter dated 26.2.2016 is defective. To understand the issue raise, the relevant part is reproduced below: “tempoh masa yang ditetapkan itu, puan akan dianggap sebagai tidak hendak membela diri dan perkara ini akan terus diputuskan oleh Lembaga Tatatertib Kumpulan Sokongan (No. 1), Jabatan Imigresen Malaysia berdasarkan keterangan-keterangan yang sedia ada sahaja.” [57] Regulation 37(2) of the 1993 Regulation stipulates on the issuance of the show cause letter states as follows – “(2) If it appears to the Chairman of the appropriate Disciplinary Authority that there exists a prima facie case against the officer, the Chairman of the appropriate Disciplinary Authority shall— 15 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal (a) direct that a charge containing the facts of the disciplinary offence alleged to have been committed by the officer and the grounds on which it is proposed to dismiss the officer or reduce his rank be sent to the officer; and (b) require the officer to make, within a period of twenty-one days from the date he is informed by notice in accordance with regulation 52 of the charge, a written representation containing the grounds upon which he relies to exculpate himself.” [58] Hence, based on the above provision, the show cause letter that is issued must contain the facts of the disciplinary offence alleged to have been committed by the applicant; the grounds on which it is proposed to dismiss the applicant or reduce his rank to be sent to the applicant; and require the applicant to make a written representation containing the grounds upon which he relies to exculpate himself within a period of 21 days from the date he is informed by notice of the charge. [59] The requirements of the 1993 Regulation has been met by the show cause letter dated 26.2.2016 which had been issued against the applicant. The usage of the title “Puan”, in the view of this court, does not cause the show cause letter issued against the applicant to be defective. There was never an issue as to any confusion to whom the show cause letter was made out to. [60] This court further found that the facts of the disciplinary offence was contained at paragraph 2 of the show cause letter. The grounds on which it is proposed to dismiss the applicant or reduce his rank to be sent to the applicant. The request for a written representation within 21 days containing the grounds upon which he relies to exculpate himself was in the show cause letter. [61] This court therefore is of the view that the applicant was not in any manner in doubt as to whether the show cause letter was issued against him or otherwise. [62] Pertaining to the use of the word “kurang amanah” in quoting Regulation 4(2)(e) of P.U.(A)395/1993, this court made reference to the Section 4(2)(e) and (j) of P.U.(A)395/1993 (in verbatim in Malay language) provides as follows: “BAHAGIAN II TATAKELAKUAN 4. (1) ... 16 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal (2) Seseorang pegawai tidak boleh – (a) … … (e) kurang cekap atau kurang berusaha; (f) tidak jujur atau tidak amanah; … (j) cuai dalam melaksanakan tugas-tugasnya.” [63] In the present case, Regulation 4(2)(e) of P.U.(A)395/1993 had been quoted as follows in the show cause letter: “Perbuatan tersebut membolehkan tuan dikenakan tindakan tatatertib selaras dengan Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993 dan boleh diertikan sebagai melanggar tatakelakuan di bawah peraturan 4(2)(e) dan 4(2)(j) Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993 iaitu :- 4(2) Seseorang pegawai tidak boleh – (e) kurang cekap atau kurang amanah; dan (j) cuai dalam melaksanakan tugas-tugasnya.” [64] The respondent submitted the typographical error by accidental substitution of the word “kurang berusaha” with the word “kurang amanah” does not render the charge fatal. Moreover, it was submitted that applicant did not in his representation or during his appeal state he was in any manner misled or confused of the ground that was intended to be proffered against him [65] With regard to the vagueness of the charge, including the fact that there was no time stated in the charge, this court found the applicant had been able to answer to the charge as follows: “6. Pada 24.09.2014, saya bertugas seperti biasa dan tanpa saya sedari 2 orang pegawai imigresen kp 17 telah menganiaya saya. Mereka telah berpakat menerima 2 permohonan yang mereka tahu menjadi satu kesalahan sekiranya permohonan tersebut diproses dan boleh merosakkan periuk nasi kepada pegawai imigresen lain terutama pada pegawai yang membuat kelulusan untuk permohonan tersebut. Pada waktu kejadian pegawai kaunter PI Mohd Aziz bin Mohamed Asri telah menerima dan menukar biodata permohonan tersebut dan telah menghantar semua permohonan termasuk 2 permohonan tersebut kepada saya untuk tujuan kelulusan. Setiap permohonan yang diberikan 17 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal kepada saya akan disemak seperti biasa mengikut proses kerja yang telah ditetapkan sebelum diluluskan...” [66] If the charge was vague, the applicant would not be able to answer to the charge as reproduced above. Here, the applicant was able to meet the charge against him effectively when he clearly and lucidly specified in his representation when and how the irregularity transpired. [67] In R (on the application of Wheeler) v Assistant Commissioner House of the Metropolitan Police [2008] EWHC 439 (Admin) where it was held that: “[6] ... Vagueness is a ground for judicial review if it leads to unfairness in the proceedings, and the danger with a vague charge is that the parties, and in particular the Respondent (now Mr Wheeler, the Claimant), do not know with some precision what is alleged against them and therefore are not fully able to address those matters in the course of the hearing...” [68] This court is of the view that the case of Esso Production Inc, v Maimunah Ahmad & Anor [2002] 3 CLJ 242 where the charge failed to specify time, place and date the respondent, Maimunah Ahmad received RM400 is distinguishable from this case. In the case before this court, it is clear the applicant was clear as to the charge against him and was able to answer to the charges. [69] The next sub issued raised is whether it was necessary for the charge to state Shaiful Azreen bin Abdul Aziz and Mohd Abdul Aziz Bin Mohamed Asri. The charge against the applicant concerns the approval that was given by him with respect to the two applications for Malaysian International Passport. It is the view of this court even without the mentioning of Shaiful Azreen bin Abdul Aziz and Mohd Abdul Aziz Bin Mohamed Asri, the applicant was clear as to the charge against him. The fact that the names were not stated in no way was a defect to the charge against the applicant. [70] The fifth ground raised is whether there is an “Anisminic error”. The sixth ground is where there is a breach of the natural justice as there was a failure to establish the investigation committee. [71] What amounts to an Anisminic error? An Anisminic error relates to “error of jurisdiction” which had been propounded the House of Lords in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at page 171 where Lord Reid observed as follows: 18 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal “But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly.” [72] Based on the case of Anisminic Ltd (supra) and the facts of this case before this court, this court is satisfied there is nothing before this court which could be considered to be an anisminic error. [73] With regard to the investigation committee, Regulations 37(5) of P.U.(A)395/1993 provides as follows:- “(5) If the appropriate Disciplinary Authority is of the opinion that the case against the officer requires further clarification, the Disciplinary Authority may establish an Investigation Committee for the purpose of obtaining such further clarification.” [74] Hence, where the Disciplinary Authority considers that the case against the officer requires further clarification, the Disciplinary Authority may establish an Investigation Committee. [75] The regulation provides that the disciplinary authority may establish an investigation committee. In the considered view of this court, there is no legal requirement which requires the disciplinary authority to establish the investigation committee. What subregulation (5) provides is the discretion to the disciplinary authority to set up an investigation committee should there be a need for further clarification. Ultimately, it is up to the disciplinary authority whether there is a need to establish an investigation committee. Failure to do so does not amount to non-compliance or procedural impropriety. 19 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [76] In the case of Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3 MLJ 149: “[28] From the authorities referred to above I am of the view that the law is settled. Thus, an oral hearing may be given in instances where the disciplinary authority considers that the case against the officer requires further clarification and consequently appoint a Committee of Inquiry pursuant to general order 26(5) of the GO (Chapter D). If the disciplinary authority considers that no further clarification is required, I do not think that the officer concerned can insist or demand that a Committee of Inquiry be appointed.” [Emphasis added] [77] Hence, if the disciplinary authority is satisfied and requires no further explanation, there is no requirement in the Regulations for an investigation committee to be established. Therefore, this court is of the view in this case, the disciplinary authority had the discretion whether or not to establish the investigation committee. A failure to do so, in the view of this court, did not amount to procedural impropriety. [78] The Federal Court in the case of Public Services Commission Malaysia & Anor v Vickneswary a/p RM Santhivelu (substituting M Senthivelu a/l R Marimuthu, deceased) [2008] 6 MLJ 1 whereby the Federal Court held that should the Disciplinary Authority consider the case against the officer requires further clarification then it may appoint an Investigation Committee. This is a decision of the Disciplinary Authority and not the officer of the court. The relevant paragraph of the grounds of judgment is reproduced herein for ease of reference: “[22] …Should the disciplinary authority consider that the case against the officer requires further clarification then it may appoint a committee of inquiry. This is a decision of the disciplinary authority, not the officer or the court. At this enquiry the officer will be allowed and if the committee shall so determine shall be required to appear before it and exculpate himself. Again this is the decision of the disciplinary authority. The wording of GO 26(6) is sufficiently clear that his right to appear and exculpate himself in person is at the discretion of the committee of inquiry. [23] General Order 26(7) imposes a duty upon the committee to give the officer an opportunity to be present and to question any witnesses examined by the committee, but then only if the witnesses are called by the committee… 20 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [24] From this, it is clear that it is never the intention of the legislators to give an officer under disciplinary action the right to give oral evidence…. [25] From the provisions of the general orders it is clear that it is never the intention of the legislators that the courts should step into the shoes of the disciplinary authority in deciding whether it was fair to the respondent to have granted him a right to make oral representations or whether he should be given such right although he did not ask for it.” [79] The Federal Court further held that the decision as to whether to refer a case to a an Investigation Committee is at the discretion of the Disciplinary Authority, the Disciplinary Authority would have to consider the written representation of the respondent, i.e. whether his written representation exculpated himself from the charges preferred against him. It followed that it was the Disciplinary Authority and not the court that decided on whether the officer in his written representation had exculpated himself. Applying the case of Vickneswary (supra) to the facts of this case, this court is of the considered view this ground is without merit. Wednesbury Unreasonableness And Doctrine Of Proportionality [80] The seventh ground raised was whether the Wednesbury Unreasonableness and the Doctrine of Proportionality is applicable in this case. [81] It was submitted that the sentence of dismissal of the applicant was illegal on the account of irrationality and proportionality. To support this contention, the applicant relied on Regulation 37D(b) of P.U.(A)395/1993. For ease of reference, the said regulation is reproduced: “…Powers of the Disciplinary Authority 37D. If, after considering the officer’s representation and the report of the Investigation Committee, if any, the appropriate Disciplinary Authority- (a) finds the officer guilty of the disciplinary offence alleged to have been committee by him and that the officer should be dismissed or reduced in rank, the Disciplinary Authority shall impose the punishment of dismissal or reduction in rank, as it deems appropriate; 21 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal (b) finds the officer guilty of the disciplinary offence alleged to have been committed by him but that, after taking into consideration the circumstances in which the disciplinary offence was committed and other mitigating factors, such offence does not warrant a punishment of dismissal or reduction in rank but warrants the imposition of a lesser punishment, the Disciplinary Authority shall impose upon the officer any one or more of the punishments other than dismissal or reduction in rank as specified in regulation 38 as it deems appropriate; or (c) finds the officer not guilty, the Disciplinary Authority shall acquit him…” [Emphasis added] [82] The provision clearly states that “if after considering the officer’s representation and the report of the Investigation Committee, if any”. Hence the finding of the disciplinary authority must be after the representation of the applicant and the report of the Investigation Committee, if any. [83] In this case, there was no Investigation Committee established. Would this provision still be applicable to the facts of this case? This court alluded to the Court of Appeal case of Ezaky Mulya Sapawi v. Dato' Sri Nadzri Siron Pengerusi Lembaga Tatatertib Kumpulan Sokongan (No.1) Jabatan Pengangkutan Jalan Malaysia & Ors [2022] 1 LNS 1450 where her Ladyship See Mee Chun delivering the judgment of the Court held: “[65] We, therefore, find that regulation 37D Discipline Regulations does not apply where there is no Investigation Committee established.” [84] Hence, based on the provision of Regulation 37 D of the 1993 Regulation and the case of Ezaky Mulya Sapawi (supra), this court is of the considered view that the applicant cannot rely of Regulation 37 D of the 1993 Regulation. The reason is the applicant’s disciplinary proceedings did not establish an Investigation committee. Without the investigation committee, the provision of Regulation 37D would not be applicable. [85] On the ground of proportionality, the applicant argued that the punishment imposed was not proportionate to the offence. 22 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [86] In Ranjit Kaur a/p S Gopal Singh v Hotel Excelsior (M) Sdn Bhd [2010] 6 MLJ 1 the Federal Court held as follows: “The Federal Court in a landmark decision has held that the decision of inferior tribunal may be reviewed on the grounds of 'illegality', 'irrationality' and possibly 'proportionality' which permits the courts to scrutinise the decision not only for process but also for substance.” [87] Hence what the courts have stated is that the possibility of proportionality being one of the grounds for review. [88] In relation to proportionality, this court alluded to the Court of Appeal case Mohamad Din Talip v Polis Di Raja Malaysia [2004] 4 CLJ 804 where the court stated: “Several forms of punishment are provided for reg. 2 of the Regulations. The disciplinary board had to determine whether the circumstances or gravity of the disciplinary offence under the second charge would justify the appellant's dismissal. The disciplinary board has made the decision that it did. The appellant was adjudged bankrupt and he was charged with having tarnished the name of the police force by being adjudged bankrupt. We cannot find anything to suggest that the decision to dismiss him was irrational or "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it". We are of the view that the punishment of dismissal was proportionate with the disciplinary offence under the second charge.” [89] In the High Court case of Marrizal Othman v Tan Sri Dato’ Sri Khalid Abu Bakar & Ors [2016] 1 LNS 1837 (HC) upheld the dismissal of the applicant police officer and rejected the argument that a disproportionate punishment had been imposed. In so doing, it was stated that: “The court ought not to interfere with the disciplinary authority’s discretion in imposing appropriate punishment.” [90] The facts in this judicial review application are that the applicant was dismissed from service as an immigration office after he was found guilty for irregularly approving two (2) Malaysia passports to foreigners. It was argued by the applicant that the punishment was disproportionate. [91] The approval of passport is a duty which, in the view of this court, carries much responsibility. The issuance of a passport is linked to the 23 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal security of a country. A passport will enable an individual to enter and/or exit a country. For this reason, the issuance of a passport, if not carried out within the proper procedures and checks, could lead to a compromise in the security and safety of a country. [92] As the charge against the applicant relates to irregularly approving two passports, this court is of the considered view the offence is serious which relates to national security. Hence, the dismissal of the applicant, in the considered view of this court, is proportionate. This ground is therefore without merit. [93] The eight ground is whther the failure to give reasons. In this regard, the Federal Court in Nordin Hj Zakaria (Timbalan Ketua Polis Kelantan) & Anor v. Mohd Noor Abdullah [2004] 2 CLJ 777 stated as follows: “Reading the provisions of the 1970 Regulations in its entirety, I see no requirement that entitles the respondent to be informed of the possibility of him being dismissed or reduced in rank in the event he is convicted of any of the charges preferred against him in either the show cause letter or prior to the start of the disciplinary enquiry. There is no provision imposing a similar obligation as that prescribed by reg. 28(1) of the 1993 Regulations. Since the 1970 Regulations impose no duty on the 1st Appellant to inform the respondent at the first opportunity of the likelihood of his dismissal or reduction in rank, the 1st appellant cannot be said to have deprived the respondent of any procedural fairness as there cannot be any breach of duty where none exists in law.” [94] Other cases on this ground are Pendaftar Pertubuhan v. Datuk Justin Jinggut [2013] 3 MLJ 16 and Ketua Pengarah Hasil Dalam Negeri v Alcatel-Lucent Malaysia Sdn Bhd & Anor [2017] 1 MLJ 563. [95] In Minister of Labour, Malaysia v. Chan Meng Yuen and Another Appeal [1992] 2 MLJ 337 the Supreme Court reiterated the general principle that the court cannot compel the decision-maker to give reasons for his decision where there is no duty imposed by law to do so. Nonetheless, if the decision-maker did not give any reasons for his decision, it may be a basis for the court to make a finding that the decision was made without any rational reasons. The Supreme Court quoted the case of R v. Secretary of State for Trade and Industry, ex p Lonrho pte 4, where Lord Keith of Kinkel said in the House of Lords: “The absence of reasons for a decision where there is no duty to give them cannot of itself provide any support for the suggested irrationality of the decision. The only significance of the absence of reasons is that if all other known facts and circumstances appear to point overwhelmingly 24 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal in favour of a different decision, the decision-maker, who has given no reasons, cannot complain if the Court draws the inference that he had no rational reason for his decision.” [96] Ezaky Mulya Sapawi v. Dato' Sri Nadzri Siron Pengerusi Lembaga Tatatertib Kumpulan Sokongan (No.1) Jabatan Pengangkutan Jalan Malaysia & Ors [2022] 1 LNS 1450 [TAB 37 RBOA] where her Ladyship See Mee Chun delivering the judgment of the Court held: “[77] The Appellant relied on regulation 15(3) Disciplinary Board Regulations 1993 to support its proposition that the DA and DAB have a duty to give reasons. The provision including regulation 15(4) state as follows: "(3) On receipt of the appeal under sub-regulation (2) the Disciplinary Board shall cause to be prepared a copy of the records of proceedings of the Disciplinary Board, including the grounds on which the Disciplinary Board relied upon in arriving at its decision. (4) The records of proceedings prepared under sub-regulation (3) together with the grounds of decision and the appellant's appeal shall be sent to the Disciplinary Appeal Board not later than thirty days from the receipt of the appeal by the Disciplinary Board." [78] A perusal of the aforesaid provisions would indicate that, without more, there is no obligation on the disciplinary board to provide reasons. It merely provides the procedure on preparing the record of proceedings which includes the grounds relied on and the period within which the record together with the grounds of decision are to be sent. [79] We add there is nothing in the disciplinary procedure in Discipline Regulations 1993 which requires reasons to be given. In particular, we refer to regulation 34 on the conditions for dismissal or reduction in rank, regulation 37 on the procedure to be followed and regulation 38 with regard to the punishment to be imposed. [80] We refer to Mohamad Hassan bin Zakaria v. Universiti Teknologi Malaysia [2017] 10 CLJ 36; [2017] 6 MLJ 586 and Majlis Perbandaran Pulau Pinang v. Syarikat Berkerjsama-sama Serbaguna Sungai Gelugor Dengan Tanggungan [1999] 3 CLJ 65; [1999] 3 MLJ 1 for the duty to give reasons when there is no express duty to do so. In Mohamad Hassan, this was said at pages 605 and 606: "[46] Without diminishing its importance and contributions to many respects in the law on judicial review and the law of bias, the Federal Court's decision in Majlis Perbandaran Pulau Pinang concerns the local authority's imposition of conditions to its approval of the respondent's application for planning permission. The facts are not really important for our present purpose, but the 25 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Federal Court's views on the principles on the duty to give reasons are Generally, the principles that can be deduced from the Federal Court's decision on this issue may be summed up as follows: (a) the duty to give reasons depends on whether there is an express duty to do so; (b) where there is no express duty, the court should consider whether there is an implied obligation to state reasons; [97] Hence, in summary there is no duty to give reasons for the decision if there is no legal requirement which requires so. In this case, there is no legal requirement to provide reasons for the decision. [98] Another ground raised is condonation the employer. What amounts to condonation can be derived from Halsbury’s Laws of England: “(a) Halsbury’s Laws of England Fourth Edition 2000 Reissue, Volume 16, Butterworths 2000 di m/s 414 (perenggan 450) (TAB (43) Jilid 3. Kand. 93 m/s digital 152):- “…450. Condonation …an employer who, with full knowledge of employee’s misconduct elects to continue him in his service CANNOT subsequently dismissed him for the offence which he has condoned…”.” [Emphasis added] [99] Federal Court in the case of Public Services Commission Malaysia & Anor v Vickneswary a/p RM Santhivelu (substituting M Senthivelu a/l R Marimuthu, deceased) [2008] 6 MLJ 1 “[39] On the question of condonation raised by the respondent and referring to the case of Azman bin Abdullah v Ketua Polis Negara [1997] 1 MLJ 263, I hold, in this present case, that there was no condonation. Condonation in the context of employment contract is an act by the employer to excuse or forgive him for the wrongful act committed by the employee. Condonation can be in the active form ie by the act of telling the person that he has been forgiven for the wrongful act done or by a passive act of not taking any action. Halsbury's Laws of England (4th Ed) Vol 16 at p 439 para 648 describe condonation as follows: An employer who with full knowledge of his employee's misconduct elects to continue him in service cannot subsequently dismiss him for the offence which he has condoned.” 26 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [100] The applicant had raised the issue of interdiction to contend that the failure to interdict means that the offence is not serious enough to warrant the punishment of dismissal. In the view of this court, the fact that the applicant was not interdicted does not amount to a condonation as the power to interdict pursuant to Regulation 43(1) of the 1993 Regulation is a discretion to be exercised by appropriate Disciplinary Authority for the purpose of facilitating investigation against the officer. [101] The applicant’s contention that he had been assured by TPPI Wan Ahmad Shukri Bin Wan Mohamed Dumiri when the applicant met him that no disciplinary action will be taken or punishment would be imposed against him as the real perpetrator had admitted to committing to this offence. [102] Puan Malina binti Md. Akhir had in recording his statement together with the Amirul bin Mohd Khairy (Encl.19 & Encl.78) and Zulkarnain bin Haini (Encl. 20 & Encl.74) had assured him that no disciplinary action will be taken against him. [103] The officers deny ever giving the applicant such an assurance. [104] It is further the view of this court that the certificate of appreciation and Sasaran Kerja Tahunan (“SKT”) does not amount to condonation. The certificate and SKT in no way indicates condonation. [105] Based on the facts if this case, this court is satisfied there is no condonation. [106] The last ground put forth by the applicant is No Presence of Interested Party. The applicant contends that there were presence of interested party during the third respondent’s deliberation on 07.08.2017 and the during the 5th respondent’s deliberation on 15.01.2018 [107] The Applicant’s contention that the Puan Effa Nuzainani binti Jaffar (Immigration Officer from the Integrity Department) during the third respondent’s deliberation on 07.08.2017 has tainted the proceeding. [108] The facts are that Puan Effa Nuzainani binti Jaffar (Immigration Officer from the Integrity Department) was not actively involved with respect to the entire disciplinary proceeding initiated against the applicant but instead was only responsible to prepare the “Kertas Pertimbangan” based on the documents which had been received and carry out administrative function. Moreover, it is unclear how Puan Effa Nuzainani binti Jaafar is an interested party by carrying out an administrative function. 27 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [109] The officers in the Integrity Department who was involved in the investigation with respect to the complaint concerning the applicant. These officers would not be part of the secretariat. [110] This court finds the ground to be baseless. Conclusion [111] For the aforesaid reasons, this court is satisfied this application for judicial review is without merit. The applicant’s application is hereby dismissed with no order as to costs. Date: 27 December 2022 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya Shah Alam 28 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Counsels: - For the Applicant Ebrina Zubir TETUAN MANIAM NAIR & CO. Advocates & Solicitors No. 117, Tingkat 2, Jalan Genuang, 85000 Segamat, Johor. +6 06 931 3675 mnair_co@hotmail.com For the Respondent Kogilambigai Muthusamy JABATAN PEGUAM NEGARA MALAYSIA Bahagian Guaman, No. 45, Persiaran Perdana, Presint 4, 62100 Putrajaya. +6 03 8872 2000 kogilambigai@agc.gov.my 29 S/NBA-25-58-10/2018 dP1cdZsuEmxtZHRqtoxIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal