Judgment

Gopal Sri Ram, JCA

(delivering the judgment of the court)

1. The issue in this appeal is whether the learned Judge of the High Court was right in granting certiorari to quash an award of the Industrial Court upholding the dismissal of the respondent. The factual background against which this appeal rests may be shortly stated.

2. At all material times the respondent was employed as an accounts clerk in the Material Accounting Group Department of the appellant. He commenced employment in 1976. On March 26, 1992 following an allegation of bribery against the respondent, the appellant held a domestic inquiry at the conclusion of which the respondent was dismissed. Needless to say, the decision to dismiss was based on the truth of the allegation made against him.

3. The respondent being dissatisfied, invoked the procedure prescribed by s 20 of the Industrial Relations Act 1967. Eventually, on October 17, 1992 the Honourable Minister referred the dispute between the appellant and the respondent to the Industrial Court. The Industrial Court, after directing an exchange of pleadings, fixed the matter for hearing on June 26-29, 1993.

4. The hearing proceeded on the first day but was later adjourned in respect of the other days because the then counsel for the respondent was unfamiliar with his client's case. The matter was later fixed for hearing on September 28 and 29, 1993 at Kuala Terengganu. In the meantime, all that had happened was that the first witness of the appellant had commenced his evidence-in-chief.

5. Due to some reason not apparent before us, the Industrial Court vacated the hearing dates on September 28 and 29, 1993. The matter was then fixed for mention on 0ctober 2, 1993 and further dates of hearing on January 3-6, 1994 were assigned. However, these dates were also vacated because of the monsoon season which intervened, making travel to Kuala Terengganu impossible. Once again new dates were fixed from July 18-21, 1994. Notice of these dates were given some 6 months in advance.

6. About a month before July 18, 1994 the respondent's new solicitor applied for an adjournment in writing. That was turned down by the Industrial Court. Then about two weeks before July 18, 1994, the respondent's solicitor wrote once again asking for an adjournment on the ground that he was engaged in a criminal case and was unable to attend at the Industrial Court. That request being turned down, the solicitor withdrew from the case.

7. According to the respondent, he was only made aware of these circumstances some six days before the hearing. When the matter was called on for hearing, the respondent appeared in person and requested for an adjournment but he was refused on objection being taken by the appellant's counsel. After hearing the respective addresses, the Industrial Court made the following ruling:

   There has been more than two postponements already. The Claimant has changed two lawyers. Mr. Zulkifly Nordin, then changed to Mr. Wan Muttalib to handle. In the last hearing at Terengganu due to monsoon season the case was postponed. The Claimant's solicitor, Mr. Wan Muttalib now has discharged himself due to a criminal case. The Claimant's case is part-heard many times.

8. The upshot was that the adjournment was refused and the case went on. The Industrial Court at the end of the hearing reserved its decision and handed down its award some three months later. As we earlier said, it upheld the respondent's dismissal and agreed with the appellant's contention that the charge of bribery had been made out. The respondent then moved the High Court of Kuala Lumpur for orders of certiorari and mandamus. He sought a quashing of the award and a reference back to the Industrial Court for a re-hearing of his case. The learned Judge who heard the application granted it and issued the orders prayed for by the respondent. Present appeal brought against that decision.

9. At the forefront of his argument, Mr. Andrew Saw for the appellant, submitted that the refusal of the adjournment was entirely proper since the Industrial Court was a master of its own proceedings. It had acted entirely properly having regard to the facts and circumstances of the instant case. Counsel placed special emphasis on the fact that the respondent had failed to provide any satisfactory explanation for his failure to take steps to engage another solicitor to represent him on July 18, 1994. Mr. Saw says this is an important fact overlooked by the learned Judge when coming to his decision.

10. In support of his argument, he referred to the judgment of Eusoff Chin, J, (as he then was) in Nordin Hamid & Co v Pathmarajah [1990] 2 MLJ 308, where the learned Chief Justice at p 311 of the case referred to and acted upon the following passage of Hashim Yeop Sani, FJ in Lee Ah Tee v Ong Tiow Pheng [1984] 1 MLJ 107:

    The discretion of the judge to allow or refuse an application for adjournment was a subject dealt with in depth by the Court of Appeal in Dick v Filler [1943] 1 All ER 627. We agree to and adopt the following principles as regards the discretion in allowing or refusing an adjournment: (1) Whether or not a party should be granted an adjournment is wholly at the discretion of the judge. He would exercise his discretion solely upon his view of the facts. (2) Prima facie this discretion is unfettered. (3) The question to ask in any particular case is whether on the facts there are adequate or sufficient reasons to refuse the adjournment. (4) Although an appellate court has power to interfere with the judge's decision in regard to the granting of the adjournment, it would refrain from doing so unless it appears that the discretion has been exercised in such way which tended to show that all necessary matters were not taken into consideration or the decision was otherwise arbitrarily made. (5) An appellate court ought to be very slow to interfere with the exercise of the discretion. But if it appears that the result of the order made below would be to defeat the rights of the parties altogether or that there would be an injustice to one or the other of the parties then the appellate court has power and indeed a duty to review the exercise of the discretion.

11. The learned Chief Justice then went on to say,

    Having regard to the background of the proceeding, the conduct of the applicant before the Industrial Court and the requirements of section 30(3) of the Act, I find that the Industrial Court had acted reasonably, and had not acted in excess of its jurisdiction or in breach of the rules of natural justice when it decided to proceed to hear and dispose of the reference notwithstanding the last minute application for the adjournment and the subsequent act of the applicant's counsel discharging themselves from acting for the applicant.

12. The principle that is to be distilled from Nordin Hamid (ibid) and allied cases is that the Industrial Court must act reasonably when exercising its discretion when allowing adjournments. Generally speaking, when a court exercises its discretion - and this includes the Industrial Court - a higher court, whether on appeal or on certiorari, should be slow to interfere with the exercise of discretion.

13. As the Privy Council observed in Ratnam v Cumarasamy [1965] 1 MLJ 228, there is a presumption that a discretion has been properly exercised. The burden is on he who asserts that the discretion was wrongly exercised. In the exercise of such discretion by the Industrial Court, regard should be had to the factual matrix against which the discretion was exercised including the reasons for the way in which it was exercised.

14. Thus, if the Industrial Court took into account irrelevant considerations or failed to take into account relevant considerations, the discretion will be described as having been unreasonably exercised. It will also be described as unreasonable if no reasonable tribunal similarly circumstanced would have come to a similar decision: Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223.

15. That brings us to the present appeal.

16. On the facts, the question is whether the Industrial Court exercised its discretion wrongly. We must confess that when we first read the appeal record, we were inclined to agree with the arguments of Mr. Andrew Saw. But, having heard Ms Seah and having addressed our minds carefully to the peculiar facts of this case, we must with respect, agree with the learned Judge although we do so for different reasons.

17. The learned Judge proceeded on the footing that the appellant had been deprived of his constitutional right to legal representation and that there had been a breach of Article 5 of the Federal Constitution. We cannot accept that. This case does not turn on the provisions of the Federal Constitution. Neither does it have any relevance to the authority relied on by the learned Judge and by Ms. Seah before us. We are in agreement with Mr. Andrew Saw that the case of Federal Hotel Sdn Bhd v National Union of Hotel, Bar & Restaurant Workers [1983] 1 MLJ 175 is entirely irrelevant. But there are two reasons why the learned Judge was right in his decision.

18. First, the Industrial Court when holding that the trial had been postponed on a number of occasions failed to take into account the fact that on two of those occasions, the postponements were not at the behest of the respondent. If one reads the ruling of the learned chairman, one gets the impression that the respondent was responsible for the delay in the proceedings. That was plainly not the case.

19. The second reason is the nature of the allegations against the respondent. We remind ourselves that the charge is one of bribery. If proved, it demolishes the reputation of the person against whom it is made. In the circumstances, the issue is whether the respondent was given a fair opportunity to redeem his reputation. With respect, we do not think he was. The right to legal representation is a sine qua non in a case as the present. The Industrial Court ought to have allowed the respondent to be represented by legal counsel who is trained in the skill of cross-examination.

20. We are therefore left in serious doubt whether the respondent was able to get his points across during cross-examination. We are therefore unable to say with confidence that a fair procedure was given to the respondent on the facts peculiar to this case.

21. For these reasons, we will affirm the orders of the learned Judge. If follows that the appeal is dismissed with costs. The orders of the learned Judge are affirmed.

Cases

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223; Lee Ah Tee v Ong Tiow Pheng [1984] 1 MLJ 107; Nordin Hamid & Co v Pathmarajah [1990] 2 MLJ 308; Ratnam v Cumarasamy [1965] 1 MLJ 228; Federal Hotel Sdn Bhd v National Union of Hotel, Bar & Restaurant Workers [1983] 1 MLJ 175

Legislations

Federal Constitution: Art.5

Industrial Relations Act 1967: s.20

Representations

Andrew Saw, Jacqueline Christie and LK Mah (Ng Yook Woon & Andrew TC Saw) for Appellant

LG Seah (Lobo & Associates) for Respondent

Notes:-

This decision is also reported at [2000] 2 AMR 2207