DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR
[BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS]
PERMOHONAN UNTUK SEMAKAN KEHAKIMAN NO. R2(3)25-23-2009
Dalam
perkara
mengenai
permohonan untuk suatu perintah
certiorari
dan
mandamus
berkenaan Award No. 2166 tahun
2008 bertarikh 24.12.2008 yang
dibuat dalam kes Mahkamah
Perusahaan No. 1/4 -2698/2008;
Dan
Dalam perkara mengenai seksyen
20 Akta Perhubungan Perusahaan
1967
Dan
Dalam perkara mengenai Aturan
53 Kaedah-kaedah Mahkamah
Tinggi 1980
Dan
Dalam perkara mengenai Jadual
1, Akta Mahkamah Kehakiman,
1964
Dan
Dalam perkara mengenai Seksyen
44(1) Akta Relief Spesific 1950
1
Antara
…Pemohon
Encik Ganesan a/l Rethanam
Dan
1. Cargill Palm Products Sdn. Bhd.
…RespondenPertama
2. Mahkamah Perusahaan Malaysia
… Responden Kedua
JUDGMENT
Mohd. Zawawi Salleh, J:
[1]
This is an application by the Applicant for an order of
certiorari and mandamus to quash the Industrial Court (“Second
Respondent”) Award No. 2166/2008 dated24.12.2008, holding
that the First Respondent was dismissed with just cause and
excuse (“Impugned Award”) and to direct the Registrar of the
Second Respondent to set down for re-hearing the Industrial
Court Case No: 1/4-2008 before another Chairman.
[2]
After hearing the oral submissions of learned counsels
appearing for both parties, considering the Written Submission
filed herein and perusing the cause papers, the Court
dismissed the application with costs.
2
Brief Facts
[3]
The brief facts of this case are as follows:
(a) The First Respondent’s position at the time of
dismissal was as a Senior Fitter and that his last
drawn salary was RM1,850.00.
(b) The First Respondent had approached one Cik
Roslinda Binti Zainon (“COW2”) from the Applicant’s
Human Resources Department to obtain a letter
concerning the number of hospitalization leave
taken as a result of the accident and his salary
details at the time of the said accident for his
personal injury claim. COW2 duly complied with the
said request and handed a “To Whom It May
Concern” letter dated 2 February 2005 (“First
Letter”) to the First Respondent, which stated the
following:
“Sesiapa yang Berkenaan”
Adalah dimaklumkan bahawa penama di atas
telah mengalami kemalangan pada 17/5/2002.
Bersabit dengan ini beliau telah tidak hadir
bekerja selama 41 hari.
3
Beliau telah bekerja dengan syarikat ini lebih
kurang 15 tahun, iaitu bermula pada 4/6/1990
sehinggalah sekarang ini.
Gaji
pokok
beliau
pada
masa
berlaku
kemalangan tersebut ialah RM 1,564.00”.
(c)
On or about 14 April 2005, through a telephone
call from Associated Adjusters Sdn. Bhd., COW2
was informed that there was another “To Whom It
May Concern” letter dated 2 February 2005
(“Second Letter”) that was sent on the Applicant’s
letterhead containing incorrect details on the First
Respondent’s details and his hospitalization leave.
The
letter,
amongst
others,
contained
the
following:
“Sesiapa Yang Berkenaan
Adalah dimaklumkan bahawa penama di atas
telah mengalami kemalangan pada 17/5/2002.
Bersabit dengan ini beliau telah tidak hadir
bekerja selama 75 hari.
Beliau telah bekerja dengan syarikat ini lebih
kurang 15 tahun, iaitu bermula pada 4/6/1990
sehinggalah sekarang ini.
4
Gaji
pokok
beliau
pada
masa
berlaku
kemalangan tersebut adalah seperti berikut:-
Bulan Februari 2002
Gaji Pokok
RM 1,850.00
Overtime
RM
450.00
Elaun
RM
90.00
JUMLAH
RM 2,390.00
Bulan Mac 2002
Gaji Pokok
RM 1,850.00
Overtime
RM
520.00
Elaun
RM
90.00
JUMLAH
RM 2,460.00
Bulan April 2002
(d)
Gaji Pokok
RM 1,850.00
Overtime
RM
490.00
Elaun
RM
90.00
JUMLAH
RM 2,430.00”.
As the First Respondent takes the alleged misuse
of its letterhead seriously, the First Respondent
was compelled to embark onto an investigation
into the matter. Investigation revealed that the
signature in the Second Letter was forged and the
details therein (salary details and hospitalization
5
leave) were increased. Further, investigation also
revealed
that
the
First
Respondent
had
approached COW2 around a week after the First
Letter was issued in order to increase his basic
salary and hospitalization leave.
(e)
In the circumstances, the First Respondent issued
the Applicant a show caused letter dated 25 April
2005 to accord the First Respondent with an
opportunity to answer allegations that had been
leveled against him. The allegations were as
follows:
“1)
Menyalahkan
surat
Cargil
Palm
Products Sdn Bhd yang bertarikh 2hb
Februari untuk memberi maklumat palsu
kepada syarikat Insuran Associated Sdn
Bhd.
2)
Telah memalsukan tandatangan Puan
Roslinda dalam surat bertarikh 2hb
Februari 2005.
3)
Memberi
maklumat
palsu
kepada
syarikat insuran dalam surat dalam
surat bertarikh 2hb Februari 2005. Anda
telah menambah jumlah cuti sakit dari
6
41 hari kepada 75 hari, gaji dari RM
1,564.00 kepada RM 1.850 dan begitu
juga
dengan
didapati
tidak
overtime
sama
dan
dengan
elaun,
rekod
sebenar pendapatan pada bulan-bulan
berkenaan”.
(f)
As the First Respondent was not satisfied with
explanation that was offered by the Applicant vide
his reply dated 22 April 2005, the First Respondent
therefore accorded the Applicant with another
opportunity to answer to the allegation leveled
against him. Vide a letter dated 26 April 2005, the
Company issued a Notice of Domestic Inquiry to the
requiring him to attend an inquiry on 3 May 2005.
(g)
The Domestic Inquiry was duly convened on 3 May
2005. At the Inquiry, the Applicant pleaded not guilty
to the allegations leveled against him.
(h)
The Panel of inquiry, after hearing the various
testimonies and after due deliberation of the matter,
found the Applicant guilty of charge 1 and 3 that
was leveled against him.
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(i)
The First Respondent terminated the Applicant’s
service with immediate effect, vide a letter dated 6
May 2005.
Ground of Challenge
[4]
The main contention of the Applicant is the Second
Respondent has failed to give adequate and proper reasons for
its findings. It was contended that if the Impugned Award is
perused, it is clear that the Second Respondent merely
enumerated the facts of the case and then summed up the
submissions of both parties. The Second Respondent then
simply proceeded to uphold the decision of the First
Respondent to dismiss the Applicant.
[5]
Further, it was contended by the Applicant that the
evidence adduced during the proceedings could not support the
charge no. 1 and 3 leveled against the Applicant.
Findings of the Court
[6]
It is pertinent to note that there is no provision in the
Industrial Relations Act 1967 requiring the Industrial Court to
hand down a reasoned award. However, it is implied from the
principle of natural justice that the Chairman ought to give
reasons in support of his or her conclusion on the fact and law.
This is so because parties who are dissatisfied with the Award
8
of the Court may apply to the Civil High Court to review the said
award. In Lloyd v Mc Mahon [1987] 1 AII ER 118, Lord Bridge
stated at page 1161:
“My Lords, the so-called rules of natural justice are
not engraved on tablets of stone.
To use the
phrase which better expresses the underlying
concept,
what
the
requirements of
fairness
demand when any body, domestic, administrative
or judicial, has to make a decision which will affect
the rights of individuals depends on the character
of the decision-making body, the kind of decision it
has to make and the statutory or other framework
in which it operates.
In particular, it is well
established that when a statute has conferred on
any body the power to make decisions affecting
individuals, the Courts will not only require
prescribed by the statute to be followed, but will
readily imply so much and no more to be
introduced
by
way
of
additional
procedural
safeguards as will ensure the attainment of
fairness”.
[7]
In Flannery v Halifax Estate Agencies Ltd (trading as
Colleys Professional Services) [2000] 1 WLR CA (Eng),
Henry LJ stated:
9
“The duty is a function of due process, and
therefore of justice. Its rationale has two principal
aspects. The first is that fairness surely requires
that the parties especially the losing party should
be left in no doubt why they have won or lost. This
is especially so since without reasons the losing
party will not know (as was said in Ex p Dave)
whether the court has misdirected itself, and thus
whether he may have an available appeal on the
substance of the case.
The second is that a
requirement to give reasons concentrates the
mind; if it is fulfilled; the resulting decision is much
more likely to be soundly based on the evidence
than if it is not”.
[8]
However, the Chairman is not required to write a lengthy
judgment like a court of law. What is expected of him or her is
that he or she must state the narration of facts of the case, the
issues to be adjudicated upon, a discussion on evidence, the
findings of facts, a statement of law to be applied to the facts so
found and finally the conclusion.
[9]
Looking at the Impugned Award as a whole, this Court is
satisfied that the Second Respondent has handed down a
reasoned award.
In its Impugned Award, the Second
Respondent reasoned that:
10
(a) The First Respondent cannot accept only the
positive aspects of the Domestic Inquiry and reject
all
the
other
aspects
which
had
negative
implications on him, especially as charges nos. 13 are interlinked.
(b) The Applicant did not have any difficulty in
understanding the charges leveled against him by
the First Respondent even at the show cause
letter stage. The Applicant did not ask for any
clarification of the said charges and had in fact
replied to the show cause letter in his reply on
page 25, CLB-1.
(c)
Through
his
own
testimony
during
cross-
examination, the Applicant agreed that his lawyer,
Mr. Doraisamy, is a lawyer from “Loke Chew &
Zainab Raub”, even though the Applicant denied
his lawyer had facsimiled to him the said forged
letter.
(d)
The non-inclusion of the Associated Adjusters
Sdn. Bhd.’s address in charge no. 1 is not material
in the Second Respondent’s view since what is
material is that the Applicant was well aware that
he was making an insurance claim for the accident
through his lawyer and charge no. 1 made it clear
11
that
the
letter
purportedly
from
the
First
Respondent had given false information to the
insurance company by the name of “Associated
Adjusters Sdn. Bhd.”.
(e)
It not necessary for the First Respondent to
subpoena
Encik
Doraisamy,
the
Applicant’s
lawyer. In fact, if the Applicant was very sure he
had no role to play at all in the Second Letter,
which the Second Respondent be the opposite,
the Second Respondent would have expected the
Applicant to call the said lawyer as his witness, but
the Applicant did not do so.
[10]
The analysis of the facts above clearly shows the
process of reasoning which led the Second Respondent to
decide the dispute referred to her the way she did. There is no
doubt that the decision had been arrived at on the basis of the
evidence adduced by both the Applicant and the First
Respondent.
[11]
It is pertinent to note that the ground of challenge by the
applicant is essentially an attack against the findings of facts
made by the Second Respondent based on the available
evidence.
If this Court were to accede to the Applicant’s
argument, it would mean this Court would be investigating the
merits or justification of the Impugned Award on the basis of the
12
facts and evidence found by the Second Respondent. This is in
essence an invitation to this Court to exercise appellate powers,
not judicial review jurisdiction.
[12]
On this issue, M.P. Jain, in his book, “Administrative Law
of Malaysia and Singapore”. Third Edition, had this to say at
pages 714 – 715:
“The courts have emphasized time and again
that certiorari should not be used by way of a
disguised appeal from findings of fact. The courts
have thus laid down the norm that they would not
interfere with the findings of fact by a body unless
the same are completely unsupported by any
evidence.
This is known as the ‘no-evidence’
rule. A finding having no evidence to support it is
characterized as a ‘perverse’ finding of fact; it is
regarded as an error of law and is quashed. If,
however, there is some evidence to support a
finding of fact, the courts do not interfere with it.
The courts do not regard it as their function to
interfere with the findings of fact by a body merely
because of insufficiency or in adequacy of
evidence.
The courts have evolved such a restrictive
rule to review facts as they want to give the
13
tribunals enough leeway to decide cases entrusted
to them for disposal. Too much interference with
them may take away the advantages, and the
rationale, of tribunal adjudication.
But, at the
same time, these bodies cannot be left completely
uncontrolled lest they should act in an arbitrary
manner.
Therefore, the ‘no-evidence’ rule has
been evolved to impose a limited judicial review on
facts decided by them.
If there is some evidence to support a finding
of fact, it is not then for the courts to go into the
sufficiency or adequacy of the evidence. It is not
the
court’s
function
to
review,
reassess,
reappreciate, reappraise evidence, or draw its own
inferences as to facts from the evidence.
The
court will not interfere merely because it may
come to different conclusions on facts on the basis
of the same evidence. The court has to take the
evidence as it stands and not go into the question
of its reliability in a petition for certiorari”.
[13]
Before I conclude, I would like to address one matter.
The matter is this: It has been repeatedly held by courts, in a
long line of decisions, that where an employee has been guilty
of dishonesty or his or her employee has ample reason to
distrust him or her, an Industrial Court cannot deny the
14
employer to dismiss the employee. An employer cannot be
compelled to continue with the employment of a person who
was guilty of dishonesty towards his employer and whose
continuance in the service of the latter is patently inimical to its
interest. The industrial relations law, in protecting the right of
the
employee,
authorizes
destruction of the employer.
neither
oppression
nor
self-
Honesty and integrity are the
primary consideration in all organizations. Our empathy with
the cause of labour should not blind us to the rights of the
management. We should help stamp out, rather than tolerate,
the commission of irregular acts whenever there are noted.
Dishonesty and malpractices should not be allowed to continue
but should be rebuked.
Conclusion
[14]
The Court finds that the Second Respondent had
properly appreciated the facts and the law in considering the
merits of the claimant’s application. There was ample evidence
to entitle the Second Respondent to reach the conclusions
which it did. There was no error of law on its part. Neither did it
misappropriate the available evidence. The Court is satisfied
that the Impugned Award did not suffer any infirmities of
“illegality”, “irrationality” or “procedural impropriety” warranting
intervention by this Court by way of judicial review.
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[15]
Wherefore, the application is dismissed with costs. The
Impugned Award dated 24.12.2008 is affirmed.
So ordered.
Dated: 12 JULY 2010.
(DATO’ HAJI MOHD ZAWAWI BIN SALLEH)
JUDGE
HIGH COURT MALAYA
KUALA LUMPUR
For the Applicant
For the First Respondent :
: Anthony Gomez
Messrs Gomez & Associates,
Peguambela & Peguamcara
Petaling Jaya, Selangor.
Dato’ Thavalingam
(Nik Zarifah Anis with him)
Messrs Zaid Ibrahim & Co.,
Peguambela & Peguamcara
Kuala Lumpur.
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