SUHAILIN BINTI NOR ASIM 1. ) JAWATANKUASA PERJAWATAN, PENGAMBILAN, PELANTIKAN DAN KENAIKAN PANGKAT (JKPPPKP), PERBADANAN TABUNG PEMBANGUNAN KEMAHIRAN (PTPK) 2. ) PERBADANAN TABUNG PEMBANGUNAN KEMAHIRAN (PTPK)

WA-25-2-01/2022 Kand. 38 04/01/2023 12:30:19 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN KUASA-KUASA KHAS) PERMOHONAN SEMAKAN KEHAKIMAN NO: WA-25-2-01/2022 Dalam perkara mengenai keputusan Penamatan Perkhidmatan Mengikut Perenggan 50(1) Peraturan-Peraturan Pegawai Awam (Pelantikan, Kenaikan Pangkat Dan Penamatan Perkhidmatan) 2012 yang dikeluarkan oleh Pengerusi Jawatankuasa Perjawatan, Pengambilan, Pelantikan dan kenaikan Pangkat (JKPPPKP), Perbadanan Tabung Pembangunan kemahiran (PTPK) melalui surat No. Ruj: PTPK.(S).PSM.500-2/37(24) bertarikh 29 September 2021; Dan Dalam perkara permohonan oleh SUHAILIN BINTI NOR ASIM untuk mendapatkan satu kebenaran/Perintah Certiorari dan Mandamus; Dan Dalam perkara Peraturan 28,29,30 Peraturan-Peraturan Pegawai awam (Pelantikan, Kenaikan Pangkat dan Penamatan Perkhidmatan) 2012; Dan Dalam perkara Peraturan 50(1) dan 52, Peraturan-Peraturan Pegawai Awam ANTARA SUHAILIN BINTI NOR ASIM (NO. K/P: 830421-01-5220) …PEMOHON DAN 1. JAWATANKUASA PERJAWATAN, PENGAMBILAN, PELANTIKAN DAN KENAIKAN PANGKAT (JKPPPPKP), 1 S/N D0Z0/oyM4EfXsTBBnp5pA **Note : Serial number will be used to verify the originality of this document via eFILING portal PERBADANAN TABUNG PEMBANGUNAN KEMAHIRAN (PTPK) 2. PERBADANAN TABUNG …RESPONDEN- PEMBANGUNAN KEMAHIRAN (PTPK) RESPONDEN JUDGMENT [1] The applicant was appointed as an Audit Officer by the 2nd respondent, the Skills Development Fund Corporation, vide a letter of offer dated 14.12.2017 (“Letter of Offer”). She reported for duty on 8.1.2018. [2] The 2nd respondent is established under the Skills Development Fund Act 2004 (“SDFA”). [3] According to the Letter of Offer, the applicant was to be put on probation for a period between one to three years. During the said probation period, the applicant would have to fulfil certain requirements, including passing a service examination, before being confirmed in her post. [4] On 17.12.2020, Puan Mazita Mohd Hanafi (“Puan Mazita”) from the Management Services Division of the 2nd respondent emailed the applicant, informing her that, for her to be confirmed in service, she had to pass the required examination for Auditor Grade W41/W44 Part I, II, III and IV. [5] On 7.1.2021, the applicant had completed her three years’ probation period. By a letter dated 22.1.2021 to the 2nd respondent, the applicant applied to extend her probation period. In the said letter, the applicant acknowledged that she had to pass the audit examination as she was informed about it by the Human Resources Management Branch of the Management Services Division. The applicant’s letter inter alia states as follows: Setakat ini, saya telah dimaklumkan oleh Cawangan Pengurusan Sumber Manusia, bahawa saya perlu menjalani peperiksaan audit pada 17 Disember 2020 yang lalu. Lantaran itu saya telah menghubungi pegawai iaitu En Baharudin yang mengendalikan 2 S/N D0Z0/oyM4EfXsTBBnp5pA **Note : Serial number will be used to verify the originality of this document via eFILING portal epeperiksaan.audit.gov.my pada 22 Disember 2020 bahawa permohonan untuk calon tumpang masih dalam senarai menunggu. Saya telah mengemukakan permohonan saya untuk menjalani peperiksaan sekitar bulan April 2021. [6] Pursuant to the said applicant’s letter, the 1st respondent convened a meeting on 14.7.2021 to deliberate the applicant’s application to extend her probation period. It was resolved at the meeting inter alia that: (a) The applicant’s application to extend her probation period was rejected; and (b) Pursuant to reg 52 of the Public Officers (Appointment, Promotion and Termination of Service) Regulations 2012 (“the 2012 Regulations”), the applicant was asked to show cause as to why her service shall not be terminated. [7] Subsequent to the decision made by the 1st respondent, the 2nd respondent issued a notice to the applicant. In the notice dated 28.7.2021, the 2nd respondent informed the applicant of the 1st respondent’s decision. The notice (“notice to show cause”) inter alia states as follows: Dimaklumkan bahawa Mesyuarat Jawatankuasa Perjawatan, Pengambilan, Perlantikan dan Kenaikan Pangkat (JKPPPKP), Perbadanan Tabung Pembangunan Kemahiran (Bilangan 1 Tahun 2021 yang bersidang pada 14 Julai 2021 telah membuat keputusan menamatkan perkhidmatan puan sebagai Juruaudit Gred W44 mengikut Perenggan 50(1) Peraturan-Peraturan Pegawai Awam (Pelantikan, Kenaikan Pangkat dan Penamatan Perkhidmatan) 2012 (P.U.(A) 2012 berkuatkuasa 14 Ogos 2021. [8] The applicant was directed to make a representation within 14 days of the receipt of the notice to show cause as to why her service should not be terminated. [9] In response to the notice to show cause, the applicant submitted her letter of representation vide an email dated 10.8.2021. 3 S/N D0Z0/oyM4EfXsTBBnp5pA **Note : Serial number will be used to verify the originality of this document via eFILING portal [10] The 1st respondent then convened a meeting on 1.9.2021 to deliberate on the letter of representation submitted by the applicant. In its finding, the 1st respondent decided that the applicant had not shown sufficient cause in her letter of representation. The 1st respondent then decided not to extend the probation period as requested by the applicant. [11] Pursuant to the decision made by the 1st respondent in not extending the probation period, the 2nd respondent issued a notice of termination to the applicant dated 29.9.2021. According to the notice, the applicant’s termination was to take effect on 29.10.2021 (“the impugned decision”). The Judicial Review [12] Aggrieved by the impugned decision to terminate her, the applicant commenced this application for judicial review for an order of certiorari to quash the same. [13] The application is supported by the applicant’s affidavit in Encl 3 (“AIS-3”). [14] The grounds of the application for judicial review can be summarised as follows: (a) The applicant asserted that the requirement to pass Part III (Accounting) and Part IV (Auditing) is not applicable to the applicant. (b) According to the applicant, the National Audit Department Examination Syllabus (Amendment Year 2020) states that the requirement for the W41 auditors’ scheme is Part A – Essays (Code 2941A) only (“2020 Amendment”). (c) In the circumstances, the Human Resources Management Branch of the 2nd respondent, in adopting the National Audit Department Examination Syllabus in 2013 (“2013 Amendment”), had erred since the applicable syllabus relevant to the applicant was the 2020 syllabus. 4 S/N D0Z0/oyM4EfXsTBBnp5pA **Note : Serial number will be used to verify the originality of this document via eFILING portal For the aforesaid reasons, learned counsel for the applicant submitted that the respondents had committed an error of law in imposing a condition to the applicant that is not required under the 2020 Amendment. [15] In any event, the First Assessing Officer responsible for assessing the applicant's performance had failed to inform the applicant of the steps to improve her performance before she signed the Performance Appraisal Report. [16] Learned counsel then urged this Court to allow the judicial review application. The Analysis [17] The issue to be determined by this Court is whether the applicable syllabus to the applicant is the 2013 Amendment syllabus or the 2020 Amendment. [18] Let us go through the relevant requirements in the 2020 Amendment: Sukatan Peperiksaan Perkhidmatan bagi Skim Perkhidmatan Juruaudit Gred W41 (Dalam Percubaan) ... 5. Kertas Peperiksaan yang terlibat: (a) Bahagian A – Subjek Umum Sukatan Jabatan Perkhidmatan Awam (JPA) (Kod 2941A); (b) Bahagian B(I) – Perlembagaan dan Undang-Undang; (c) Bahagian B(II) – Perakaunan; dan (d) Bahagian B(III) – Pengauditan. It should be noted that para 5 of the 2013 Amendment also provides for a similar provision. 5 S/N D0Z0/oyM4EfXsTBBnp5pA **Note : Serial number will be used to verify the originality of this document via eFILING portal [19] In the circumstances, even if the applicable syllabus is the 2020 Amendment, as learned counsel for the applicant urged this Court to conclude, there is no evidence before the Court that the applicant had attended and passed the examinations for Perakaunan and Pengauditan. There is no evidence before me that the applicant was given the exemption from sitting both examinations either. [20] The relevant parts of the Letter of Offer state that the applicant must fulfil the following requirements: (a) Berkhidmat dalam tempoh percubaan selama satu (1) tahun hingga tiga (3) tahun di mana di dalam tempoh percubaan ini, puan dikehendaki: (i) Hadir dengan jayanya Program Transformasi Minda; dan (ii) Lulus peperiksaan perkhidmatan yang ditetapkan sebelum disahkan di dalam perkhidmatan. (b) Pengesahan dalam perkhidmatan adalah tertakluk setelah memenuhi syarat (a) serta mendapat perakuan dan sokongan oleh Ketua Jabatan. It is not in dispute that the applicant had attended the Mind Transformation Program. It is also not disputed that the applicant had passed the Peperiksaan Perkhidmatan (Gred 29 ke atas) (Bahagian A). [21] What is in issue is the applicant did not attend the required examination for Auditor Grade W41/W44 – Part I, II, III and IV and was not given any exemption. [22] The applicant’s contention is she is not legally required to sit for those examinations. If indeed that is true and if indeed she had fulfilled all the necessary requirements for confirmation, why did she request an extension of her probation period? She was made known of these requirements by Puan Mazita from the Management Services Division. She was even informed that the nearest schedule for the said examinations was in January 2021. The applicant had full knowledge that she had to attend and pass the Part III (Perakaunan) and Part IV (Pengauditan) examinations before she could be confirmed in service. She cannot now feign ignorance. 6 S/N D0Z0/oyM4EfXsTBBnp5pA **Note : Serial number will be used to verify the originality of this document via eFILING portal [23] In her letter of representation, the applicant asserted that she had enquired from one Encik Baharuddin, a competency officer of the National Audit Department, who allegedly told her that there was no need for her to sit for the two examinations in Part III and Part IV: Setelah saya menerima surat pemakluman emel berkenaan, saya telah membuat semakan dengan En Baharuddin dari pegawai kompetensi dari Jabatan Audit Negara dalam akhir bulan Disember 2020 melalui panggilan telefon bahawa mengikut syarat-syarat pengesahan jawatan saya, peperiksaan Bagi Bahagian III (Perakaunan) dan Pengauditan (IV) adalah tidak perlu disebabkan peperiksaan tersebut tidak dinyatakan dalam surat pelantikan saya. [24] With respect, I find this line of argument to be untenable. To begin with, there is no affidavit in support from En Baharuddin to confirm the assertion made by the applicant. Secondly, if indeed there was no requirement for the applicant to sit for the said examinations in Part III and Part IV as she would like this Court to conclude, why did she make an attempt to contact epeperiksaan.audit.gov.my to obtain the date for the examinations? [25] On the issue of the Annual Performance Report 2020 on the applicant, the applicant alleged that the First Assessing Officer, Puan Samila Kadir, who was her head of department and responsible for assessing the performance of the applicant, had failed to inform her of the steps to be taken to improve her performance. The argument is that the applicant was deprived of the opportunity of knowing what needed to be done for the betterment of her career advancement. [26] I find the assertion to be misleading. In Part VIII of the Report, Puan Samila categorically noted that: Adalah disahkan bahawa prestasi pegawai ini telah dimaklumkan kepada PYD [Pegawai Yang Dinilai]. In short, Puan Samila confirmed in the report that the applicant’s job performance, or lack thereof, was made known to her [PYD]. 7 S/N D0Z0/oyM4EfXsTBBnp5pA **Note : Serial number will be used to verify the originality of this document via eFILING portal [27] On the extension of the probation period, although the respondents have the discretion, they are not obligated in law to do that. Reg 30(1) of the 2012 Regulations provides that the respondents may extend the probation period of the applicant, whether with or without penalty. But then, reg 30(4) states that the respondents shall only approve the application for an extension if there are reasonable grounds for believing that the officer is able to comply with the conditions for her confirmation during the extended period. [28] The 1st respondent had addressed its mind to the issue of the extension application made by the applicant. It had the benefit of all the relevant reports that include the letter of representation made by the applicant. She was given the opportunity to respond to the notice to show cause. In her letter of representation, the applicant did not seek for an oral hearing to be afforded to her. [29] The Federal Court in Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utra Badi a/l K Perumal [2001] 2 MLJ 417 FC and Public Services Commission Malaysia & Anor v Vickneswary [2008] 6 MLJ 1 FC held that the right to be heard given by art 135(2) of the Federal Constitution did not require the person concerned to be given an oral hearing. [30] The same proposition can be seen in Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3 MLJ 149 FC. The applicant cannot now complain that there was a purported breach of the principle of natural justice on the grounds of not being afforded an oral hearing when she did not request it. There was no such breach. Findings [31] For the reasons aforesaid, my findings are as follows: (a) The phrase “lulus peperiksaan Perkhidmatan yang ditetapkan sebelum disahkan dalam Perkhidmatan” in the Letter of Offer to the applicant is wide enough so as to include the Part III (Perakaunan) and Part IV (Pengauditan) examinations. (b) Even if the applicant were to rely on the 2020 Amendment syllabus, the applicant still has to sit and pass the said examinations. 8 S/N D0Z0/oyM4EfXsTBBnp5pA **Note : Serial number will be used to verify the originality of this document via eFILING portal (c) There is no evidence before the Court that the applicant had sat and passed the said examinations. Neither is there any evidence that the applicant was given the exemption. (d) The applicant was fully aware of the need to sit and pass the examinations. She asked for her probation period to be extended so that she could sit and pass the examinations. The applicant cannot now come to this Court and assert that En Baharuddin told her that she was not required to sit for the examinations because there was no such condition in her Letter of Offer. (e) The assertion made by the applicant was a bare allegation. There was no affidavit in support filed by En Baharuddin to confirm that he had allegedly given that advice to the applicant. In any event, the assertion is misplaced. There is a condition that the applicant has to sit and pass the examinations in the Letter of Offer. (f) Since the applicant was afforded every opportunity to present her case, there was no breach of the principle of natural justice. [32] In conclusion, there is no reviewable error committed by the respondents to make the impugned decision amenable to judicial review. The impugned decision is not tainted with any procedural impropriety, Anisminic error or Wednesbury unreasonableness to justify any intervention from this Court. [33] The application for judicial review is therefore dismissed with costs of RM3,000 subject to allocatur. Tarikh: 4 Januari 2023 (WAN AHMAD FARID BIN WAN SALLEH) Hakim Mahkamah Tinggi Kuala Lumpur. 9 S/N D0Z0/oyM4EfXsTBBnp5pA **Note : Serial number will be used to verify the originality of this document via eFILING portal Pihak-pihak: Bagi Pihak Pemohon : Siti Rafidah Abdul Raof Tetuan Aswandi Hashim & Co. Bagi Pihak Responden : Datuk Mohd Hafarizam Harun, Norhazira Binti Abu Haiyan Tetuan Hafarizam Wan & Aisha Mubarak 10 S/N D0Z0/oyM4EfXsTBBnp5pA **Note : Serial number will be used to verify the originality of this document via eFILING portal