Thirunavukarasu A/l Angappan 1. ) Kerajaan Malaysia 2. ) KEMENTERIAN PENDIDIKAN MALAYSIA 3. ) LEMBAGA TATATERTIB PERKHIDMATAN PENDIDIKAN KEMENTERIAN PENDIDIKAN MALAYSIA KPM 4. ) LEMBAGA RAYUAN TATATERTIB PERKHIDMATAN PENDIDIKAN SURUHANJAYA

AA-25-15-05/2021 Kand. 50 27/08/2022 21:20:40 5 IN THE HIGH COURT IN MALAYA AT IPOH IN THE STATE OF PERAK DARUL RIDZUAN JUDICIAL REVIEW APPLICATION NO: AA-25-15-05/2021 Dalam Perkara Mengenai Thirunavukarasu A/L Angappan (No. KP: 760716-08-5153) (Pesakit) Dan Dalam Perkara Mengenai Akta Kesihatan Mental 2001 Dan Dalam Perkara Mengenai Permohonan Tanapakiam @ Thanapakkiam A/P Palaniappan (No. K/P: 440610-08-5566) yang menuntut sebagai wakil sah kepada Thirunavukarasu a/l Angappan; Pesakit untuk suatu Perintah Certiorari untuk membatalkan keseluruhan keputusan Pengerusi Lembaga Tatatertib Perkhidmatan Pendidikan, Kementerian Pendidikan Malaysia (KPM) yang telah mengambil tindakan tatatertib dan selanjutnya memecat Pesakit Thirunavukarasu a/l Angappan berkuatkuasa pada 14.1.2020 melalui surat yang bertarikh 28.1.2020 Dan Dalam Perkara Mengenai Permohonan Pesakit untuk suatu Perintah Certiorari untuk membatalkan Keputusan Lembaga Rayuan Tatatertib Perkhidmatan Pendidikan, Suruhanjaya Perkhidmatan Pelajaran Malaysia (SPPM) yang menolak rayuan Pesakit melalui surat yang 1 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal bertarikh 7.12.2020 dan disampaikan melalui Pos Berdaftar oleh Guru Besar SK Kuala Pari melalui surat iringan yang bertarikh 22.2.2021 dan diterima pada 24.2.2021. Dan Dalam Perkara Mengenai Permohonan Pesakit untuk satu Perintah Mandamus kepada Responden Pertama dan Responden Kedua Supaya Pesakit di kembalikan bekerja ke jawatan asalnya (reinstatement to his former employment) tanpa kehilangan sebarang kelayakan dan kemudahan; Dan Dalam Perkara Mengenai Aturan 53 dan 92 Kaedah (4) Kaedah-Kaedah Mahkamah 2012; Dan Dalam Perkara Mengenai Seksyen 10(5) Akta Pencen 1980 Dan Dalam Perkara Mengenai Akta Spesifik Relif 1950 Dan Dalam Perkara Mengenai Seksyen 24(4) Akta Mahkamah Kehakiman 1964 Dan Dalam Perkara Mengenai Pekeliling Perkhidmatan Bilangan 10 Tahun 1995 2 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal BETWEEN 10 THIRUNAVUKARASU A/L ANGAPPAN (NRIC. NO: 760716-08-5153) ...APPLICANT AND 15 1. KERAJAAN MALAYSIA 2. KEMENTERIAN PENDIDIKAN MALAYSIA 3. LEMBAGA TATATERTIB PERKHIDMATAN PENDIDIKAN, KEMENTERIAN PENDIDIKAN MALAYSIA (KPM) 4. LEMBAGA RAYUAN TATATERTIB PERKHIDMATAN 20 PENDIDIKAN, SURUHANJAYA PERKHIDMATAN PELAJARAN MALAYSIA (SPPM) ...RESPONDENTS JUDGMENT 25 Introduction [1] The Applicant, a government school teacher since 2001 with grade DG32 (KUP) suffers from panic disorder and major depression. His medical 30 condition affected his work with him having to absent himself on a number of occasions. He underwent treatment and had sought to be re-assigned to teach the afternoon schooling sessions so as to cope better with the side- effects of the medication taken for his ailment. His requests were denied and he was subjected to disciplinary proceedings for misconduct. 35 [2] He was found guilty by the Lembaga Tatatertib Perkhidmatan Pendidikan Kementerian Pendidikan Malaysia (“R3”) on 14 January 2020. 3 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal His emoluments for the days he was absent from work forfeited, and he was dismissed. He appealed to the Lembaga Rayuan Tatatertib Perkhidmatan 40 Pendidikan, Suruhanjaya Perkhidmatan Pelajaran Malaysia (“R4”). He was notified by letter dated 1 December 2020 received by him on 22 February 2021 that on 24 November 2020, R4 had decided to dismiss his appeal. [3] He commenced judicial review proceedings on 21 May 2021 through 45 his mother. By reason of the COVID-19 pandemic the first return date of 14 June 2021 was vacated. On the following date of 17 September 2021 his solicitors obtained an order to discharge themselves. During the application for leave to commence judicial review proceedings, the Honourable Attorney General had no objections and leave was granted on 14 October 2021. The 50 substantive application for judicial review was scheduled for 12 November 2021 but was adjourned to 13 December 2021 as the Applicant applied (Encl 12) to pursue the action under his own name and to regularise the judicial review proceedings which was filed out of time by one day. His application to pursue the action under his name and his application (Encl 15) to extend 55 time were by consent of all parties allowed on 13 December 2021 and the amended substantive application for judicial review scheduled for hearing on 12 April 2022. The reliefs he sought was for an order of certiorari to quash the decisions of R3 and R4 and for an order of mandamus directed towards his former employer, the Government of Malaysia (“R1”), and the Ministry of 60 Education (“R2), to be reinstated to his former employment without any loss of benefits. [4] On 12 April 2022, after hearing oral submissions the parties, who had earlier filed written submissions, this Court reserved its decision to 7 June 65 2022 when the reliefs sought by the Applicant were allowed with costs. This is the grounds of judgment for the decision made on 7 June 2022. 4 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal Applicant’s State of Mental Health [5] From the records placed before the Court, the Applicant has been 70 undergoing treatment for “panic disorder” and “depression” at the Psychiatric Department of the Mental Health Hospital in Kuala Lumpur since 2006. [6] By reason of his mental condition, he was transferred to teach in a school in Perak in 2007. Upon being transferred he underwent treatment at 75 the Specialist Psychiatric Clinic at the Raja Permaisuri Bainun, Ipoh. [7] He was required to be examined by the Medical Board on 7 April 2014, where he was confirmed to be suffering from major depression with panic attacks. 80 [8] He was offered to be medically boarded out by notice dated 12 June 2014 but he declined via his letter dated 19 June 2014. [9] A report was produced by the Psychology Management Department 85 of the Public Services Department of Malaysia dated 14 August 2015 after he had undergone counselling. This report (Enclosure 2 pdf 43/86) makes mention of the various tests undertaken by the Applicant and the overall assessment about the Applicant as stated below : 90 “Secara keseluruhannya, berdasarkan permerhatian dan penilaian yang dijalankan bersama klien, dapatan permerhatian menunjukkan beliau masih mempunyai tahap komunikasi yang baik dan mesra. Kemahiran dan daya tindak dalam menghadapi permasalahannya 5 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal kehidupan hariannya masih kreatif. Pegawai dilihat lebih positif 95 tentang masa akan datang. Bersedia untuk menceburi bidang pendidikan informal, kelompok yang kecil dan tidak terlalu mencabar berbanding situasi persekolahan harian. Keupayaan dan cabaran untuk tidak bergantung kepada ubat dilihat sebagai berjaya. Klien disarankan perlu mengikuti rawatan susulan kaunselor dan (sic) pakar 100 psikiatri secara berterusan bagi memantapkan perubahan yang lebih positif.” [10] Despite the very encouraging report, it is clear from the report that the Applicant has to continue to undergo follow-up treatment from specialist 105 psychiatrists on a continuous basis. [11] Owing to the above, by a letter dated 8 September 2016, he was asked to report back to work at Sekolah Kebangsaan Jalan Pegoh, Ipoh, Perak on 13 September 2016. 110 Disciplinary Action [12] Some three years later, by letter dated 8 October 2019, he was charged with misconduct by the Ketua Setiausaha Kementerian Pendidikan 115 Malaysia with the caption “Surat Pertuduhan Tindakan Tatatertib Dengan Tujuan Buang Kerja Atau Turun Pangkat”. [13] The charge under Regulation 37 of the Public Officers (Conduct and Discipline) Regulations 1993 in the main is that he had absented 120 himself without leave and justification on many days in 2018 and 2019. 6 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal [14] At about this time, the Applicant was undergoing a series of treatment for soft tissue injury and musculoskeletal pain over his lower back at the Orthopaedic Department at Raja Permaisuri Bainun Hospital in Ipoh 125 (Enclosure 2 pdf 55 of 85). [15] However, as directed, he duly put forward his letter of representation dated 10 November 2019 in answer to the charges brought against him. He enclosed his follow-up orthopaedic treatment card (Enclosure 2 pdf 50 of 86), 130 various medical chits and a consent form directed to the Director of the Raja Permaisuri Bainun Hospital in Ipoh, Perak consenting for his psychiatric records to be released to the Headmaster of the school that he was teaching (Enclosure 2 pdf 56 to 60 of 86). 135 [16] It is to be observed that he had earlier obtained a letter dated 2 May 2019, from the Psychiatric Department of the Mental Health Hospital at the Raja Permaisuri Bainun Hospital in Ipoh, Perak addressed to the Headmaster of the school where he was teaching saying that he has been receiving treatment for major depression since January 2009 and that this is 140 a serious mental illness (Enclosure 2 pdf 50 of 86). [17] A decision was made by R3 on 14 January 2002 and conveyed by letter dated 28 January 2020 (Enclosure 2 pdf 65 of 86) that the Applicant was not able to exculpate himself from the said charges and R3 found him 145 guilty. [18] R3 proceeded to levy punishment pursuant to Regulation 38(c) of the Public Officers (Conduct and Discipline) Regulations 1993 (PU(A) 395/1993). Save for 13 days, all the other days that he was absent without 7 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal 150 leave were held to be without justification and his right to emoluments were forfeited and he was dismissed with effect from 14 January 2020. [19] He appealed to R4. No issue was taken that his appeal seemed to have been made a few days outside the prescribed 14 days for appealing 155 and during submissions, learned senior federal counsel confirmed that no objections were taken by R4 and he is not taking issue with this. [20] In his appeal to R4 made vide his letter dated 23 February 2020, (Enclosure 2 pdf 68 to 71 of 86) he had detailed the reasons on each 160 occasion as to why he was absent. [21] He enclosed, inter alia, all his medical [psychiatric and counselling] reports together with his various letters of appeals including seeking to be transferred to teach in the afternoon sessions because his depression 165 medication makes him drowsy in the mornings making it difficult to get up early causing him not to be able to turn up for work. [22] In paragraph 4 of his letter of appeal he said: 170 “ …saya pernah beberapa kali telah memohon pertukaran ke sekolah sesi petang dengan harapan perubahan akan dapat membantu saya mengatasi isu ketidakhadiran ke sekolah. Walaubagaimanapun, sehingga kini kesemua permohonan tersebut tidak pernah mendapati pertimbangan oleh pihak Jabatan Pendidikan Negeri.” 175 [23] The Applicant had also in his letter of representation (Enclosure 31 pdf 41) beseeched and renewed his appeal that he be allowed to teach in the 8 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal afternoon sessions (his previous appeals on this request having been turned down). He said he is still keen to continue in the teaching profession, failing 180 which he requested that he medically be boarded out. He ended his appeal by saying: “Andaikata sekiranya saya dikenakan tindakan tatatertib buang kerja masa depan saya akan hancur. Personaliti saya yang lembut senang 185 dipermainkan oleh orang terutamanya jika bekerja di sektor swasta.” [24] R4 replied to say that at its meeting number 808 held on 4 November 2020, it has upheld R3’s decision to have him dismissed. The letter from R4 dated 1 December 2020 was received by the Applicant on 22 February 2021. 190 The ground given by R4 for dismissing the appeal was cursory and it says: “.….. setelah menimbang rayuan tuan mendapati rayuan tersebut tidak mempunyai asas yang kukuh bagi mengubah keputusan Lembaga Tatatertib yang berkenaan.” 195 Core Issue [25] The main gangplank of the Applicant’s case is that R3 ought to have set up a Committee of Investigation (“CI”) to ascertain the state of the 200 Applicant’s mental health condition pursuant to Regulation 37(5) of the Public Officers (Conduct and Discipline) Regulations 1993, and if it had done so, the specialised knowledge on mental health would be made available especially that on major depression and panic disorders and this would have most probably exculpated the Applicant. 205 [26] The said Regulation 37(5) provide as follows: 9 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal “ 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 210 further clarification.” [27] Underlying this contention, the Applicant asserts that R3 would not have the ability to assess the psychiatric condition of the Applicant and ought to have established the CI. This failure has resulted in the Applicant being 215 denied the opportunity to call witnesses, that is, the specialist psychiatrists who have treated him or [independent] specialists from the Medical Board to verify his state of health which caused him to absent himself. [28] Closely related to this issue is that the Applicant asserted he was 220 denied the right to mitigate before such a drastic action to dismiss him was made. Applicant’s Position 225 [29] The Applicant asserted that R3 failed, neglected or omitted to obtain further clarification and to investigate into the state of health of the Applicant as presented by him in his letter of representation. Reliance was placed upon Regulation 37(5) of the Public Officers (Conduct and Discipline) Regulations 1993. 230 [30] With R3 not having the expertise in psychiatric evaluation, it was only reasonable for a CI to be established to assess, examine and to investigate the Applicant’s medical condition premised upon the available evidence and the advice of experts in this area. 10 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal 235 [31] Learned counsel for the Applicant asserted that such a procedure is available and can be found in Regulation 37A(3) (sic – should be 37B(3)) of the Public Officers (Conduct and Discipline) Regulations 1993 which provides as follows: 240 “(3) If witnesses are called and examined by the Investigation Committee, the officer shall be given an opportunity to be present and to cross-examine the witnesses on his own behalf.” [32] By reason of the failure of R3 to set up the CI and to follow the 245 procedure prescribed in Regulation 37B(3), the Applicant had been denied the opportunity to lead evidence as well as to cross-examine the witnesses, that is, the specialist doctors that were treating him or the doctors from the Medical Board to ascertain the Applicant’s medical health which caused his absenteeism. 250 [33] The proceedings before both R3 and R4 were held in the absence of the Applicant. By reason thereto, the Applicant was denied the right to mitigate before the most severe punishment, that of dismissal, was handed down. Reliance was placed on the Court of Appeal authority of Nazrul Imran 255 Mohd Nor v. Civil Service Commission Malaysia & Anor [2021] 10 CLJ 737, where it was held that: “[87] In addition, the right to mitigate before sentencing is a right well- established. The right to mitigate is now trite and fundamental as it has been 260 accepted that sentence should not be meted out unless the person concerned is heard. This is an issue of fairness to be accorded to a person before sentencing. Especially when the disciplinary action taken, as earlier stated, was with the view to dismissing him or to reduce his rank. Had the right to mitigate been afforded, there is always the possibility that he might 11 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal 265 not be dismissed from service. The fact is before the sentence to dismiss him was made, he was not asked to mitigate. Rightly, the decision of the first respondent ought not to stand based on this reason too. Thus, even if it may be right to maintain that an inferior tribunal has the right to sentence as it wishes, before that right is exercised, the person facing that tribunal must 270 be given the right to mitigate.” [34] The failure to allow the Applicant to mitigate had deprived him of the opportunity to plead for leniency in the punishment to be meted out as Regulation 38 of the Public Officers (Conduct and Discipline) 275 Regulations 1993 allows for other lesser modes of punishment such as a warning, fine, suspension or reduction of salary or demotion. [35] These failures and omissions on the part of the Applicant resulted in the decision-making process of R3 to be irrational and invalid, particularly 280 with no explanation or reasons given in rejecting the grounds presented by the Applicant. Reliance was again placed on the Court of Appeal authority of Nazrul Imran Mohd Nor v. Civil Service Commission Malaysia & Anor (supra), where it was held that: 285 “(3) It was incumbent upon both respondents not to merely say that the appellant did not exculpate himself in respect of the charge against him by the representation he had sent. These statements made, that were without any basis given, no matter how strenuously made, remained devoid of any substance or weight. Both respondents, especially the first respondent, were 290 duty-bound to explain and give reasons for rejecting the grounds given by the appellant in his representation in answering the charge. Unfortunately, this was not done by the respondents. Furthermore, the failure of the first respondent to explain why the appellant was found not able to exculpate himself, also gave credence to the contention that the first respondent did 12 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal 295 not sufficiently consider the appellant's defences. If indeed the first respondent had taken into account the appellant's defences and had rationally considered the same, surely reasons would be provided for rejecting the appellant's defences. (paras 65 & 66)” 300 [36] Similarly, at the appeal before R4, with all the medical reports laid before it, in particular that dated 2 May 2019 (Enclosure 30 pdf 27 of 39), which was before disciplinary action was taken against the Applicant, it was irrational, procedurally improper, invalid and unreasonable of R4 to uphold the decision of R3 to dismiss the Applicant. 305 [37] The failure by R3 to establish a CI and the failure by R4 to make a careful assessment of the medical condition of the Applicant and the evidence laid before it shows that both R3 and R4 had made decisions which are ultra vires their respective jurisdictions, irrational and unreasonable. 310 [38] It would be helpful to reproduce hereunder the medical report of 2 May 2019 by the Psychiatric Department and Mental Health Hospital, Raja Permaisuri Bainun, Ipoh on the Applicant and addressed to the Headmaster of his school: 315 “2. Penama diatas sedang mengambil rawatan dari pihak kami sejak 22HB JANUARI 2009 disebabkan masalah kurang tidur, susah untuk menumpukan perhatian kepada Kerja dan merasa murung. 3. Beliau didapati mengalami penyakit MAJOR DEPRESSION dan 320 pada masa sekarang diberi pengubatan T. Sertraline 25mg malam. Ini merupakan satu jenis penyakit mental yang serius dan memerlukan pengubatan yang berterusan untuk masa yang tertentu. Beliau 13 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal disyorkan untuk mengikut temujanji perawatan dengan pihak hospital dengan teratur.” 325 [39] The Applicant added that R3 and R4 had failed to take into account that: i) he was still liable to service the housing loan given by the Government. He has no other source of income to settle his 330 monthly instalments of RM997.97 for the next 17 years; and ii) he had represented that as the eldest child, he has the responsibility to care for his 75 year old mother as his father has passed away in April 2019 and his other siblings who reside in Kuala Lumpur are unable to assist (Enclosure 32 pdf 41 of 63). 335 [40] Reliance was also placed upon the High Court authority of Yuganthiran Guinda Rajoo v. Mustafar Ali & Ors [2021] 1 LNS 2359, where Abdul Murad Abdul Aziz JC said he was persuaded by the decision of Justice Mariana Hj Yahya (as she then was) in the case of Mohd Izzudin 340 bin Yahya v. Suruhanjaya Perkhidmatan Awam, (Semakan Kehakiman No. WA-25-249-06/2019), where the applicant, a medical doctor who was absent from duty for a total of 165 days by reason of atypical depression succeeded in his judicial review application by reason of the failure of the respondent to establish a CI or ought to have considered other forms of 345 punishment. In Yuganthiran Guinda Rajoo’s case, the court held against the disciplinary board and the appellate board for failing to take into account the obligation of the applicant to take care of his sick father and aged mother. 350 14 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal Respondent’s Position [41] The learned senior federal counsel filed two sets of written submissions; one primary and one in reply to the Applicant’s written 355 submissions (Enclosures 40 and 43). [42] He pointed out that: i) the Public Officers (Conduct and Discipline) Regulations 1993 provides for disciplinary action to be taken for absence 360 from duty; and ii) by reason of the Applicant’s absence from duty, the disciplinary action taken was well within the prescribed regulations and prescribed procedure with reliance placed upon Regulations 35(2), 37(1), 37(2) and 37(4). 365 [43] Upon finding the Applicant guilty, R3 had pursuant to Regulation 38(c) forfeited the Applicant’s emoluments for absence from duty and dismissed him. 370 [44] In compliance with Regulation 52 the Applicant was duly informed of R3’s decision by letter dated 28 January 2020, and in accordance with Regulations 13 and 14(1) of the Education Service Disciplinary Board Regulations 1994 (PU(A) 458/1994), the Applicant was notified of his right of appeal to R4. 375 [45] The Respondents assert that “judicial review is not to review the decision but the decision-making process” and “in a judicial review 15 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal application, the court is not exercising its appellate jurisdiction but supervisory jurisdiction” with reliance placed upon the authorities of Ng Hock 380 Cheng v. Pengarah Am Penjara & Ors [1998] 1 CLJ 405 (FC) and T. Ganeswaran v Suruhanjaya Polis Diraja Malaysia & 1 Lagi [2005] 3 CLJ 302 (CA). [46] The attention of the Court was drawn to the High Court authority of R 385 Kesavan a/l Rajathurai lwn Peguam Persekutuan Pejabat Penasihat Undang-Undang Negeri Perak Darul Ridzuan [2018] 1 LNS 93; [2018] MLJU 81, which cited Harpers Trading (M) Sdn Bhd v. National Union of Commercial Workers [1991] 1 CLJ Rep 159; [1991] 1 MLJ 417, where the Supreme Court held that: 390 “…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 395 reasonable.” [47] Next, the Respondents asserted that the Federal Court has held that from the general orders, it can be clearly concluded that it is the disciplinary authority and not the court who is to decide whether the officer in his written 400 representation has exculpated himself, see Public Services Commission Malaysia & Anor v. Vickneswary RM Santhivelu [2008] 6 573; [2008] 6 MLJ 1, which incidentally was followed by Mariana Yahya J in Mohd Ezri Saad lwn Tan Sri Dato’ Sri Khalid Abu Bakar dan Yang Lain [2021] 1 LNS 777; [2021] MLJU 978. 405 [48] Therefore, with R3 having complied with the procedural requirements and having come to a conclusion that the Applicant was guilty of the charges 16 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal and handed down punishments permissible in law, the decision by R3 is not a nullity and at all material times was in accord with fairness and natural 410 justice. [49] The Applicant was also accorded his right of appeal to R4 pursuant to Regulations 13 and 14(1) of the Education Service Disciplinary Board Regulations 1994, and the Applicant did make his representations to R4. 415 [50] R4 sat on 24 November 2020 to consider the Applicant’s appeal and having found it to be without a strong basis, dismissed the appeal and maintained the decision of R3. This, the Respondents assert is in keeping with Regulation 15 of the Education Service Disciplinary Board 420 Regulations 1994. [51] The Respondents added that procedurally, R4 was not obliged to consider the further documents presented for purposes of the appeal but it did (Enclosure 40 para 30 and Enclosure 43 para 18). Therefore, the 425 decision made by R4 was one made after having perused all the documents presented and after full consideration of the merits and should not have been challenged by the Applicant in Court (Enclosure 40 para 31). [52] As for the complaint by the Applicant that he was not given the right 430 to be heard, the learned senior federal counsel referred to the case of Ghazi Mohd Sawi v. Mohd Haniff bin Omar, Ketua Polis Negara, Malaysia & Anor [1994] 2 CLJ 333; [1994] 2 MLJ 114, where the Supreme Court held that: 17 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal 435 “The 'right to be heard' does not mean the right to be heard orally. What it means is that the officer concerned should be given a full opportunity of stating his case.” [53] The aforesaid principle in the case of Ghazi Mohd Sawi was followed 440 by the Federal Court in Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v. Utra Badi K Perumal [2001] 2 CLJ 525; [2001] 2 MLJ 417. [54] In the circumstances of this case, learned senior federal counsel 445 asserted that the Applicant was given a full opportunity of stating his case, which he did vide his letter of representations dated 18 November 2019 (sic – should be 10 November 2019) (Enclosure 31 pdf 28 of 63) and justice had been accorded to the Applicant. 450 [55] In his submissions in reply (Enclosure 43), learned senior federal counsel relied upon the case of Minister of Labour, Malaysia v. Sanjiv Oberoi & Anor [1990] 1 CLJ 44; [1990] 1 MLJ 112 for the principle decided by the Supreme Court that there was no obligation for a Minister of Labour to give any reasons when he exercises his discretion under section 20(3) of 455 the Industrial Relations Act 1967 whether to refer the representation to the Industrial Relations Court. Another authority for this principle in Nordin Hj Zakaria (Timbalan Ketua Polis Kelantan) & Anor v Mohd Noor Abdullah [2004] 2 CLJ 777; [2004] MLJU 760 (FC) was also cited. 460 [56] Premised on this principle, he asserted that R3’s power is similarly discretionary in nature and it may proceed to consider and make its decision under Regulation 37(4) of the of the Public Officers (Conduct and Discipline) Regulations 1993 and I understood the learned senior federal 18 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal counsel as submitting that based upon the authority of Minister of Labour, 465 Malaysia v Sanjiv Oberoi & Anor (supra), there is no necessity for R3 to provide any reason for its decision (Enclosure 43 para 13). [57] As for the setting up of a CI, the Respondents assert it is not a statutory requirement but is subject to the discretion of the disciplinary authority. 470 Authorities from the Court of Appeal and the High Court were cited where it was held that it was discretionary, see Mohd Sobri Che Hassan v. Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai & Anor [2018] 2 CLJ 715; [2017] MLJU 1549 (CA), Raffic Ani lwn Ketua Polis Negara, Selaku Pengerusi Lembaga Tatatertib Polis Diraja Malaysia dan Yang 475 Lain [2021] 1 LNS 1352; [2021] MLJU 1643 (HC). [58] For good measure, the Respondents asserted that even if a CI was established under Regulation 37B of the Public Officers (Conduct and Discipline) Regulations 1993, the right given to the Applicant would only 480 be to attend and cross-examine the witnesses on his own behalf. [59] The Respondents assert that the issue of the Applicant not having been given the right to mitigate was not raised by the Applicant in his affidavit in support and affidavit in reply and by reason thereto, ought not to be 485 allowed to be considered by the Court. Reliance was placed on Janagi v. Ong Boon Kiat [1971] 1 LNS 42; [1971] 2 MLJ 196 (HC) and Yew Wan Leong v. Lai Kok Chye [1990] 1 CLJ Rep 330; [1990] 2 MLJ 152 (SC). [60] In any event, the Respondents added that such a right is not provided 490 in the Public Officers (Conduct and Discipline) Regulations 1993. 19 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal [61] It was pointed out that the Federal Court had in Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v. Utra Badi K Perumal [2001] 2 CLJ 525; [2001] 2 MLJ 417 held that: 495 “….a plea in mitigation on sentence exists only in a trial in a court of law which employs a distinct form of procedure where the hearing is restricted to determining the guilt of an accused. A separate less formal inquiry is conducted after he is found guilty by the court to enable the appropriate 500 sentence to be passed. It is only at this state that the accused is allowed to plead in mitigation. But a disciplinary inquiry is not a trial. The officer is only required to exculpate himself as provided under O 26(2). He is at liberty to plead for a lesser punishment but this must be incorporated in the representation he wants to make to the authority to exculpate himself. There 505 could, therefore, be no question of a denial of his right under art 135(2) of the Constitution or under O 23 of the Public Officers (Conduct and Discipline) (Chapter 'D') General Orders 1980.” [62] Finally, on the issue of the Applicant’s request for a posting to the 510 afternoon teaching sessions, the Respondents assert that this is outside the jurisdiction of R3 which is concerned only with disciplinary issues and as for R4, it only has the jurisdiction to receive, consider and decide on an appeal. If at all, this issue is to be taken up with the District Education Office or the Education Department before disciplinary action was commenced. 515 Court’s Analysis and Findings Review for substance 520 [63] In Savithri Vello v. Eversendai Constructions (M) Sdn Bhd & Anor [2022] 5 CLJ 162; [2022] 2 ILR 389, I had occasion to say that: 20 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal “[8] The Federal Court in Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629; [2010] 4 ILR 475; [2010] 6 MLJ 1, which followed the earlier Federal Court case of R Rama Chandran v. Industrial 525 Court Of Malaysia & Anor [1997] 1 CLJ 147; [1997] 1 MLJ 145 has made it clear that in a judicial review application, the High Court may review the decision-making process of the inferior tribunal, such as the Industrial Court, on grounds of illegality, irrationality and proportionality, which permit the courts to scrutinise the decision not 530 only for process but also for substance.” (emphasis added) [64] Having said that, after referring to the case of Ranjit Kaur S Gopal Singh (supra), I had occasion to say in Tai Chin Yee v. Tong San Chan 535 Distributors Sdn Bhd & Anor [2021] 3 ILR 29; [2021] 1 LNS 543 that: “[25] …..this Court is mindful of the caution expressed by the YA Lee Swee Seng JCA speaking for the Court of Appeal in Ng Chang Seng v Technip Geoproduction (M) Sdn Bhd & Anor [2021] 1 CLJ 365 that ‘while the 540 distinction between a review and an appeal may now be blurred it is not banished altogether where the challenge to the inferior tribunal’s decision is based on illegality, irrationality and procedural impropriety or even proportionality.’ ” (emphasis added) 545 [65] In Ng Chang Seng v. Technip Geoproduction (M) Sdn Bhd & Anor [2021] 1 CLJ 365, the Court of Appeal went on further to say: “[32] Whilst a review may be akin to an appeal, it is not to be equated with 550 an appeal and the dividing line between a review and an appeal is distinctly different. A review may come close to resemble an appeal only when the decision of the tribunal cannot be justified at all, infected as it is 21 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal with illegality, irrationality, procedural impropriety or proportionality. Otherwise, the court in exercising its review jurisdiction which is of a 555 supervisory nature would defer to finding of facts of the tribunal.” (emphasis added) State of Applicant’s Medical/Mental Health Not Addressed 560 [66] The Applicant had laid materials both before R3 and R4 on his state of medical, or to be more precise, his mental health, materials in the form of documents which R4 had admittedly considered. However, there was no finding at all as a matter of fact in their decisions conveyed by R3 in its letter dated 28 January 2020 (Enclosure 2 pdf 65 of 86) and by R4 in its letter 565 dated 1 December 2020 (Enclosure 2 pdf 82 of 86) on the medical condition of the Applicant. [67] Despite having produced evidence of him receiving psychiatric treatment, as well as a copy of the letter dated 2 May 2019 from the 570 Psychiatric Department and Mental Health Raja Permaisuri Bainun, Ipoh (Enclosure 30 pdf 27 of 39) and addressed to the Headmaster of his school, which clearly says that he was suffering from major depression (with this phrase set out in capital letters by the Psychiatric Department) since 22 January 2009 (with the date also set out in capital letters by the Psychiatric 575 Department), there was no mention at all by R3 or R4 (see their Affidavits in Enclosures 30 and 31), and for that matter by the learned senior federal counsel in his submissions to deal with the Applicant’s ailment which was described by the Psychiatric Department of R1’s own general hospital and signed off by a Consultant Specialist (“Pakar Perunding”) as “penyakit 580 mental yang serius” (Enclosure 30 pdf 27 of 39). 22 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal [68] The silence to deal with this serious ailment suffered by a man who is struggling to cope and who at the same time is desperately seeking to hold onto his job which he cherishes so as to be able to pay off his housing loan 585 (with 17 years more to go) and to look after his aged mother is deafening. [69] The Court observed that the Ministry of Education Malaysia (“R2”) was made a party to this judicial review application. Despite being made a party, it did not take the opportunity to address the issue as to why it had refused 590 the Applicant’s repeated appeals to be transferred to the afternoon teaching sessions. [70] Instead, the Respondents collectively were content to take refuge behind the skirts of R3 and R4 that this has nothing to do with the respective 595 roles of R3 and R4. To add insult to injury, the Respondents in their submissions asserted that it was for the Applicant to take this matter up with the District Education Office or Department before disciplinary action was taken. Obviously, the Respondents have forgotten that the Applicant had in fact done so and it is unacceptable for the Respondents to seek to shift the 600 Applicant from pillar to post to seek relief resulting in the Respondents having dealt with this issue in an arbitrary, unreasonable, capricious and irrational manner. [71] It is unfortunate that the Respondents have collectively failed to show 605 kindness to the Applicant necessitating him having to come to the Court to seek justice and undoubtedly, the compassion of this Court on the situation in which the Applicant finds himself, and this Court ought not to turn him away. Along the path on Constitutional Hill in Johannesburg leading to The Constitutional Court of South Africa, the highest court on constitutional 610 matters, is a big structure made up of letters that reads “BE KIND”. Its 23 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal location within the grounds of the Constitutional Court makes it clear that it is this attribute that the Constitutional Court holds dear, and which underpins the cornerstone of a civilised society of equals governed by the Rule of Law. 615 [72] The American psychiatrist, Theodore Isaac Rubin said in words which resonate very well with this Court and I quote, “Kindness is more important than wisdom and the recognition of this is the beginning of wisdom.” [73] The Respondents’ other attempt to seek to justify their indifference to 620 the appeals by the Applicant by asserting that when an office-bearer exercises a discretion vested in him there is no obligation to give any reasons is misplaced because the Courts have steadily moved on since the decision of Minister of Labour, Malaysia v. Sanjiv Oberoi & Anor [1990] 1 CLJ 44; [1990] 1 MLJ 112 made more than 30 years ago and the case of Nordin Hj 625 Zakaria (Timbalan Ketua Polis Kelantan) & Anor v. Mohd Noor Abdullah [2004] 2 CLJ 777; [2004] MLJU 760 made more than 18 years ago and relied upon by the Respondents. [74] Transparency and accountability are the underlying jurisprudence of 630 the day and rightly so, see Kesatuan Pekerja-Pekerja Bukan Eksekutif Maybank Bhd v. Kesatuan Kebangsaan Pekerja-pekerja Bank & Anor [2017] 4 CLJ 265; [2018] 2 MLJ 590, where the Federal Court held that: “It is also settled public law principle and principle of natural justice that a 635 public decision-making body is under a duty to give reasons for its decision. Indeed, a reasoned decision can be an additional constituent of the concept of fairness. (Rohana Ariffin & Anor v. Universiti Sains Malaysia [1988] 2 CLJ Rep 390; [1989] 1 MLJ 487 and Kelab Lumba Kuda Perak v Menteri Sumber Manusia, Malaysia & Ors [2005] 3 CLJ 517; [2005] 5 MLJ 193). 640 The giving of reason is also one of the fundamentals of good administration.” 24 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal [75] Recently, in Perbadanan Pengurusan Trellises & Ors v. Datuk Bandar Kuala Lumpur & Ors [2021] 2 CLJ 808 (the Taman Rimba Kiara case), on the issue of duty to give reasons, Mary Lim Thiam Suan JCA (now FCJ) held: 645 “[112] Then, there is the matter of duty to give reasons. We would have thought that the law on this issue is fairly clear and settled from the early years of Rohana bte Ariffin & Anor v. Universiti Sains Malaysia [1988] 2 CLJ Rep 390; [1989] 1 MLJ 487 where it was ruled that a "reasoned 650 decision can be an additional constituent of the concept of fairness" and where the reasons have to be given so that the right of appeal may be properly and meaningfully exercised; to Majlis Perbandaran Pulau Pinang v. Syarikat Bekerjasama-Sama Serbaguna Sungai Gelugor Dengan Tanggungan [1999] 3 CLJ 65; [1999] 3 MLJ 1 [MPPP] where the Federal 655 Court extensively reasoned on why there must be this duty to give reasons even if there is no express provision for such duty. According to the Federal Court, this duty to give reasons emanates from the concept of fairness; see also Kesatuan Pekerja-Pekerja Bukan Eksekutif Maybank Bhd v. Kesatuan Kebangsaan Pekerja-Pekerja Bank & Anor [2017] 4 CLJ 265 660 and Mohamad Hassan Zakaria v. Universiti Teknologi Malaysia [2017] 10 CLJ 36. (See discussions of the same in Save Britain's Heritage v. Secretary of State for the Environment & Others [1991] 2 All ER 10). [76] In my considered view and with all due respect, I would follow the later 665 Federal Court decision of Kesatuan Pekerja-Pekerja Bukan Eksekutif Maybank Bhd (supra) and hold that the absence of an express provision in the Public Officers (Conduct and Discipline) Regulations 1993 and Education Service Disciplinary Board Regulations 1994 for the decision- maker to give reasons does not mean that the duty does not exist unless and 670 until the statute or subsidiary legislation specifically states so. Our case laws have developed progressively to instil an obligation on public authorities to 25 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal explain their decisions. The Federal Court in Kesatuan Pekerja-Pekerja Bukan Eksekutif Maybank Bhd v Kesatuan Kebangsaan Pekerja- Pekerja Bank & Anor [2017] 4 CLJ 265 categorically held that: 675 “The absence of such a provision ought not to be regarded as a cloak under which the decision maker can hide his rationale for making the decision, privy only to himself but a mystery to the interested parties or the public at large.” 680 [77] The obligation to give reasons is all the more necessary in the circumstances of this case when the Applicant’s constitutional right to life under Article 5 (1) of the Federal Constitution which includes livelihood is at stake. 685 [78] Recently, this issue was dealt by the High Court in Rosmawati Ismail v. Pihak Berkuasa Tatatertib Majlis Bandaraya Pulau Pinang & Anor [2022] 6 CLJ 617, where the court held: 690 “[81] In Malaysia, it has been held by the Court of Appeal that the expression 'life' as appearing in art. 5(1) of the Federal Constitution does not refer to mere existence but encompasses the right to continue in public service and to be engaged in gainful employment subject to removal for good cause by 695 resort to a fair procedure, see Gopal Sri Ram JCA in the case of Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 2 CLJ 771; [1996] 1 MLJ 261.” [79] With the issue of the Applicant’s mental health not canvassed at all, 700 the inference to be drawn is that R3, and later R4 on appeal, did not consider it at all or failed to engage their minds on the need to establish a CI when it was clearly necessary to do so. 26 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal [80] In fact, there were no materials produced by the Respondents to challenge the Appellant’s ailment of major depression and panic disorders, 705 his daily morning struggles to cope with the side-effects of the medication he has to take, and R2’s silence in the face of his appeals to be allowed to teach in the afternoon sessions and all of which were relied upon by the Applicant to justify him having to be absent on many days. 710 [81] Accordingly, I agree with the assertion made by the Applicant that in all fairness, R3 ought to have established a CI to address these issues pursuant to Regulation 37(5) of the Public Officers (Conduct and Discipline) Regulations 1993. 715 [82] The failure by R3 to establish a CI in the circumstances of this case has meant that the Applicant was subject to a disciplinary procedure that was unfair to him resulting in a decision which was illegal and irrational. [83] I would add that with R3 not having given any reason for its failure to 720 establish a CI in the circumstances of this case, I would go on to hold that there was no good reason not to establish one, when one was necessary, premised upon the materials laid before R3 and which ought to have been corrected by R4 on appeal resulting in a decision which was illegal and irrational. 725 [84] Only to this limited extent i.e. the non-establishment of a CI when one was, in the circumstances of this case necessary, do I agree with the decision in Yuganthiran Guinda Rajoo v. Mustafar Ali & Ors [2021] 1 LNS 2359, because the issue of whether the punishment of dismissal handed 730 down on the Applicant as a public officer was [dis]proportionate in the 27 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal circumstances of this case ought to be dealt with after a CI had been set up and it would not be necessary for this Court to consider in view of the decision I have made. 735 Proportionality of Punishment [85] However, as this action is being taken on appeal to the Court of Appeal, and if the issue of proportionality is being addressed, with respect, I would agree with the Applicant that in view of the Applicant’s medical 740 condition, with the irrational and unreasonable refusal to have him transferred to the afternoon teaching sessions to assist him to cope with the side-effects of the medication he has to take, I would hold that the punishment would be [dis]proportionate. Much learning on the issue of proportionality of punishment can be obtained in the recent Court of Appeal 745 authority of Sam Maark Verak v. Dato’ Zainal Abidin Ahmad & Ors [2022] 3 CLJ 661. See also the case of Rosmawati Ismail (supra). [86] In Sam Maark (supra), the Court of Appeal had reviewed a number of authorities and held that the courts should be very slow to deem any 750 punishment meted out by the Public Services Commission in disciplinary matters against public servants as being disproportionate because how strict the public sector wishes to be on matters of discipline may depend on many factors and circumstances and the justification may lie in the policies developed to tackle certain problems or issues that the public sector may be 755 facing. Nevertheless, on the materials placed before the Court, subject to what I had decided on the CI issue and set out above, the punishment meted out to the Applicant would be disproportionate. 28 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal 760 Mitigation [87] I agree that the Applicant ought to have been given an opportunity to mitigate before the punishment was handed down, see Nazrul Imran Mohd Nor v. Civil Service Commission Malaysia & Anor [2021] 10 CLJ 737 765 (CA). However, this is a ground I would not take into account because I accept the submission made by the learned senior federal counsel that it was a ground that was not raised in support of the application for judicial review. [88] Although, the learned senior federal counsel had relied upon the 770 authorities of Janagi v. Ong Boon Kiat [1971] 1 LNS 42; [1971] 2 MLJ 196 (HC) and Yew Wan Leong v. Lai Kok Chye [1990] 1 CLJ 1113; [1990] 2 MLJ 152 (SC), which are authorities for the principle that in civil litigation a trial court ought not to make a decision on an issue that was [not] raised by the parties in their pleadings, this principle apply as well in judicial review 775 application. This has been decided in V Paul Raj Chelladurai v. Jabatan Telekom (M) Bhd & Ors [2000] 4 CLJ 882; [2000] 3 MLJ 652; [2000] 2 AMR 2435, where the Court of Appeal held that because the ground of, inter alia, not being given the opportunity to mitigate was not raised in the statement in support of the application for judicial review, such a ground 780 cannot be allowed to be raised. [89] It is indisputable in this case, the lack of opportunity to mitigate was not raised as a ground in his affidavits and in the statement filed by the Applicant in support of his application for judicial review (Enclosure 3). 785 Therefore, the ground of lack of opportunity to mitigate will not and cannot be taken into account. 29 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal [90] Before concluding, it would not be out of place to observe that the Supreme Court authority Minister of Labour, Malaysia v Sanjiv Oberoi & 790 Anor [1990] 1 CLJ 44; [1990] 1 MLJ 112 relied upon by the learned senior federal counsel ought to be read with caution. This is because section 20(3) of the Industrial Relations Act 1967 has since been amended by the Industrial Relations (Amendment) Act 2020. The new provision of section 20(3) which came into force on 1 January 2021 has taken away the discretion 795 of the Minister whether to refer the representations to the [Industrial Relations] Court. This new provision now reads as follows: “(3) Where the Director General is satisfied that there is no likelihood of the representations being settled under subsection (2), the Director General 800 shall refer the representations to the Court for an award.” (emphasis added) [91] There is also a new provision in the Industrial Relations 1967, i.e. section 33C, brought about by the Industrial Relations (Amendment) Act 805 2020 and which also came into force on 1 January 2021. In summary, with some saving provisions for matters which were commenced before 1 January 2021, this new provision provides that any person dissatisfied with an award of the Industrial Court may appeal to the High Court within 14 days from the date of the receipt of the award. Thus, cases involving judicial 810 review of Industrial Court awards have to be read with this in mind. (emphasis added). Conclusion 815 [92] Having given the matter my anxious consideration, I granted an order of certiorari to quash the decisions of Lembaga Tatatertib Perkhidmatan 30 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal Pendidikan Kementerian Pendidikan Malaysia (R3) and Lembaga Rayuan Tatatertib Perkhidmatan Pendidikan, Suruhanjaya Perkhidmatan Pelajaran Malaysia (R4) and an order of mandamus against the Kerajaan Malaysia 820 (R1) and Kementerian Pendidikan Malaysia (R2) to reinstate the Applicant to his former employment without any loss of qualifications (“kelayakan”) and benefits with costs of RM5,000.00 as prayed for by the Applicant. 825 Dated: 25 August 2022 SuTiangJoo ( SU TIANG JOO ) Judicial Commissioner High Court in Malaya 830 Ipoh, Perak For Applicant : Vigneshvar a/l Ramarmuty (together with Kalai Nilaa) 835 [Messrs Law Chambers of Kalai Nilaa) For Respondents : Muhammad Fauzi bin Md Yusof [Perak State Legal Advisor Office] 840 31 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal [Notice: This Grounds of Judgment is subject to official editorial revision] Headnotes 845 Where there are medical records that point to the applicant suffering from a severe mental health condition and receiving treatment it behoves the disciplinary authority to establish a Committee of Investigation (“CI”) pursuant to Regulation 37 (5) of the Public Officers (Conduct and Discipline) 850 Regulations 1993 to ascertain whether such a condition would justify the applicant being absent from duty especially when the applicant’s employer had refused his requests to mitigate the side-effects of the medication he has to take, and if a CI is not established the disciplinary authority ought to provide its reason for not doing so. 855 Failure to raise loss of opportunity to mitigate before punishment is meted out results in the Court not being in a position to consider the same. 32 S/N W1uhf0Yfkii91TJg4McDw **Note : Serial number will be used to verify the originality of this document via eFILING portal