Judgment

Gopal Sri Ram, JCA

1. As long ago as March 1991, the respondent was dismissed from the public service. On November 6, 1991 he instituted proceedings for wrongful dismissal. His action was heard and disposed off on May 30, 1996. The learned Judge who tried the action held that the respondent had been wrongfully dismissed. He granted the respondent the relief sought by him. The appellants being dissatisfied with the decision appealed to this court. Their appeal was heard and dismissed on May 3, 1999.

2. The issue in this appeal concerns the right to procedural fairness. It is a constitutional right. It forms one of the cornerstones of our public law jurisprudence. It is an issue which our courts have already dealt with in several cases. See, Kanda v The Government of Malaya [1962] MLJ 169, Rohana Ariffin v Universiti Sains Malaysia [1989] 1 MLJ 487; Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 2 AMR 1617 and the very recent decision of the Federal Court in Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama Serbaguna Sungai Gelugor [1999] 3 AMR 3529. Although the content of procedural fairness is well settled, its application varies according to the facts of each particular case. It is necessary to allude to the factual matrix relevant to this appeal in order to appreciate the issues.

3. At all material times, the respondent was employed as a hospital attendant at the Penang General Hospital. On May 5, 1990, the respondent underwent a spot urine test. About eight months later, by a letter dated January 31, 1991, the first appellant instituted disciplinary proceedings against the respondent. It is an important document. The judge produced it in extenso in his judgment. We will merely reproduce the relevant portion of that letter. When translated into English it reads as follows:

   [T]he Disciplinary Board, after considering all information received, is of the view that you are to be subjected to disciplinary action with a view to dismissal or demotion pursuant to General Order 26, Public Officers (Conduct and Discipline) (Chapter D) General Orders 1980 on the following charges: That you, Mr. Utra Badi Perumal, while on duty as a Hospital Attendant T. Biasa in the General Hospital, Penang in an on-the-spot urine test on 5th May, 1990 was confirmed to be a drug addict because a urine sample taken was found to be positive for morphine. Your act in becoming a drug addict amounts to an act which can bring disrepute to the Public Service and which contravenes the conduct under General Order 4(2)(d), Public Officers (Conduct and Discipline) (Chapter D) General Order 1980. If you are found guilty, you will be punished pursuant to General Order 36 of the same General Orders. Pursuant to General Order 26 of the General Orders (Conduct & Discipline) (Cap. D) you are required to make a written representation setting out the grounds upon which you seek to exculpate yourself.

4. For completeness, I will reproduce the three General Orders referred to in the aforesaid letter. The first is General Order 4(2)(d) which reads:

   4.	The following is the code of conduct of officers in the public service. The breach of any of the provision of this code by an officer renders him liable to disciplinary action under these General Orders:
   	(2)	An officer shall not-
   		....
   		(d)	conduct himself in such manner as to bring the public service into disrepute or to bring discredit thereto;

   The second is General Order 26 which reads as follows:

   26.	(1)	Where it is represented to, or is found by, the Appropriate Disciplinary Authority that an officer is guilty of unsatisfactory work or misconduct and such work or misconduct, in the opinion of the Disciplinary Authority, merits dismissal or reduction in rank, the provisions of the following paragraphs shall apply.
   	(2)	The Appropriate Disciplinary Authority shall, after considering all the available information in its possession that there is a prima facie case for dismissal or reduction in rank, cause to be sent to the officer a statement in writing, prepared, if necessary, with the aid of the Legal Department, of the ground or grounds on which it is proposed to dismiss the officer or reduce him in rank and shall call upon him to state in writing within a period of not less than fourteen days from the date of receipt of the letter a representation containing grounds upon which he relies to exculpate himself.
   	(3)	If after consideration of the said representation, the Appropriate Disciplinary Authority is of the opinion that the unsatisfactory work or conduct of the officer is not serious enough to warrant dismissal or reduction in rank, the Disciplinary Authority may impose upon the officer such lesser punishment as it may deem fit.
   	(4)	If the officer does not furnish any representation within the specified time, or if he furnishes a representation which fails to exculpate himself to the satisfaction of the Appropriate Disciplinary Authority, it shall then proceed to consider and decide on the dismissal or reduction in rank of the officer.
   	(5)	Where the Appropriate Disciplinary Authority considers that the case against the officer requires further clarification, it may appoint a Committee of Inquiry consisting of not less than two senior Government officers who shall be selected with due regard to the standing of the officer concerned and to the nature and gravity of the complaints which are the subject of the inquiry, provided that an officer lower in rank than the officer who is the subject of the inquiry or the officer's Head of Department shall not be selected to be a member of the Committee.
   	(6)	The officer shall be informed that, on a specified day, the question of his dismissal or reduction in rank will be brought before the Committee and that he will be allowed and if the Committee shall so determined, shall be required to appear before the Committee and exculpate himself.
   	(7)	If witnesses are examined by the Committee, the officer shall be given an opportunity to be present and to question the witnesses on his own behalf and no documentary evidence shall be used against him unless he has previously been supplied with a copy thereof or given access thereto.
   	(8)	The Committee may, permit the Government or the officer to be represented by an officer in the public service or, in exceptional cases, by an advocate and solicitor and may at any time, subject to such adjournment as is reasonably necessary to enable the officer to present his case in person, withdraw such permission: Provided that where the Committee permits the Government to be represented, it shall also permit the officer to be similarly represented.
   	(9)	If, during the course of the inquiry, further grounds for dismissal are disclosed, and the Appropriate Disciplinary Authority thinks fit to proceed against the officer upon such grounds, the officer shall be furnished with a written statement thereof and the same steps shall be taken as are prescribed above in respect of the original grounds.
   	(10)	The Committee having inquired into the matter, shall make a report to the Appropriate Disciplinary Authority. If the Disciplinary Authority considers that the report is not clear in any respect or that further inquiry is desirable, the matter may be referred back to the Committee for further inquiry and report.
   	(11)	If, upon considering the report of the Committee the Appropriate Disciplinary Authority is of the opinion
   		(a)	that the officer should be dismissed or reduced in rank, it shall forthwith direct accordingly;
   		(b)	that the officer does not deserve to be dismissed or reduced in rank, but deserves some lesser punishment, it may inflict upon the officer such lesser punishment as it may deem fit; or
   		(c)	that the proceedings disclose sufficient grounds for requiring him to retire in the public interest, it shall recommend to the Government accordingly. The question of pension will be dealt with under The Pensions Act.

   The third and final provision is General Order 36 which reads as follows:

   36.	A Disciplinary Authority may impose on an officer any one or any combination of two or more of the following punishments: (a) warning (b) reprimand (c) fine (d) forfeiture of salary (e) stoppage of increment (f) deferment of salary (g) reduction of salary (h) reduction in rank (i) dismissal.

5. Returning to the narrative, the respondent, upon receiving the aforesaid letter, made a representation in writing as required by the letter of January 31, 1991. His letter is dated February 7, 1991 .He did not write it himself. He enlisted the help of a petition writer to draft the letter. In his letter, the respondent denied that he was a drug addict. He asked for another urine test to be conducted to prove his innocence. From the tenor of the letter, it appears that he had made a similar request upon an earlier occasion. He said that it was possible that the urine that has tested positive for drugs was not his sample. He referred to the fact that he had served the Government for 27 years without a blot upon his character.

6. About a month later, on March 20, 1991, the first appellant wrote a letter to the respondent dismissing him from service. The letter adverts to a meeting of the first appellant held on March 21, 1991, at which, after examining the charge and the respondent's representation, it was decided that the respondent be dismissed from service. It is common ground that the respondent was not afforded an oral hearing. It is also common ground that the respondent was not afforded an opportunity to make a plea in mitigation upon the issue of punishment.

7. The respondent challenged his dismissal by way of a suit. He gave evidence at the trial of his action. His testimony was confined to the undisputed facts of the case. For the appellants, DW1, the Deputy Director of Health for the State of Pulau Pinang gave evidence. He confirmed that the only reason for the respondent's dismissal was the fact that the urine test proved positive. This witness said that the first appellant was aware of the respondent's stand that there could have been a mistake as to the identity of the urine sample and of the other factors mentioned by the respondent. The evidence of DW1 makes it patently clear that the first appellant was acting purely upon the results of the urine test. The learned Judge, after a careful consideration of the evidence and the arguments before him, found for the respondent and held that his dismissal was null and void.

8. In the court below, the mainstay of the appellants' case was that they were under no duty to afford the respondent an opportunity to mitigate before punishment was imposed. It was argued that the show cause letter dated January 31, 1991 was sufficient. In support of that argument, the appellants relied on certain observations (to which I will refer at some length in due course) made by Salleh Abas LP in lnspector General of Police v Alan Noor Kamat [1988] 1 MLJ 260. The learned Judge treated these observations as mere obiter dicta. He examined the authorities and concluded that the observations of the learned Lord President did not represent the law upon the subject. He held that in the state of current authority, the appellants had not afforded procedural fairness to the respondent.

9. Before this court, the appellants criticised the learned Judge's approach on two grounds.

   • First, the learned Judge was wrong in treating the observations of the learned Lord President in the aforementioned authority as mere obiter dicta. They were part of the ratio decidendi.

   • Second, even if the remarks of Salleh Abas LP, were made obiter, they represent the law upon the subject at hand. These arguments necessitate an examination of the decision upon which the appellants place much reliance.

10. In Inspector General of Police v Alan Noor Kamat (ibid), the facts were these. The plaintiff, a probationary inspector received a letter from the defendant asking him to show cause within 15 days why disciplinary action should not be taken against him in respect of three charges framed against him. The letter purported to be on the instructions of Deputy Inspector-General of Police in exercise of disciplinary powers delegated to him by the Police Force Commission. The letter did not state that the defendant contemplated punishing the plaintiff by reducing his rank. The plaintiff made representations in writing in answer to the allegations raised against him. However, his reply was ten days out of time. More than a year later, the defendant imposed on the plaintiff the punishment of demotion to original rank on the first charge and fines for the second and third charges. The plaintiff challenged the defendant's action. At first instance, Ajaib Singh J, (as he then was) held for the plaintiff ([1987] 1 CLJ 51). He did so upon the sole ground that the letter issued by the Deputy Inspector General of Police was a nullity. He advanced four reasons for his finding. They appear sufficiently from the following passages in his judgment (at pp 55 & 56):

    Now surely the Deputy Inspector-General of Police was in no position to say that he was exercising 'the disciplinary powers which have been delegated to him by the Police Force Commission '. By the Instrument of Delegation (PU (B) 548) the Police Force Commission delegated its disciplinary powers to the Inspector General of Police to initiate disciplinary action with a view to imposing the punishment of dismissal or reduction in rank of certain senior police officers. This delegated power is personal to the Inspector General o f Police and he cannot in turn delegate it further to anyone else - delegatus non potest delegare. .... The letter of 14 May 1980 set out three charges of indiscipline against the plaintiff. But there is no provision in Regulation 30 for any charges to be preferred. Under Regulation 30(2) the Inspector General of Police had to give grounds on which it was proposed to dismiss or reduce the plaintiff in rank and call upon him to state in writing within a period of not less than 14 days a representation containing grounds upon which he relied to exculpate himself. The  letter of 14 May 1980 set out no grounds on which it was proposed to dismiss or reduce the plaintiff in rank as required but set out three charges which were not required. Another flaw in the letter of 14 May 1980 is that there is no mention of the proposed punishment. Under Regulation 30(2) it is incumbent upon the disciplinary authority to state that it is proposed to either dismiss the officer or reduce him in rank. This omission was clearly in breach of Regulation 30(2) which rendered the letter of 14 May 1980 nugatory.

11. Having found the letter in question to be invalid, he however, went on to say as follows (at p 462):

    The plaintiff sent a reply to the Deputy Inspector General of Police on 7 June 1980 giving his explanations on the 3 charges. After considering these explanations and having found that the plaintiff had failed to exculpate himself it was incumbent upon the Inspector General of Police thereafter to give the plaintiff an opportunity to make a plea in mitigation on punishment. This right of the plaintiff to be heard in mitigation is implied in Regulation 27 of the General Orders and in Article 135(2) of the Federal Constitution for otherwise it cannot be said that the plaintiff had been given a reasonable opportunity of being heard. He had to be heard throughout the proceedings from the beginning to the end. Isn't it a fair and reasonable expectation of any person condemned for a wrong that he would be heard in mitigation before any punishment is imposed on him? [emphasis added]

12. The defendant's appeal to the Supreme Court failed. Salleh Abas, LP, who delivered the judgment of the Supreme Court, (at p 261 of the report), identified the issues that arose for decision in the appeal:

    Two issues are involved in the application of GOD 30 to this case, namely, (1) who is the proper Disciplinary Authority, and (2) having regard to the punishment of reduction in rank imposed on the respondent, whether the show cause letter which did not direct the respondent's attention to the possibility of such punishment has sufficiently complied with the requirements of para (2) of GOD 30. Either of these issues is vital to the case.

    He then went on to say as follows:

    As regards the first issue, we are of the view that the learned Judge was correct. The respondent was at the material time a probationary police inspector and as such, according to the instrument of delegation of power by the Police Service Commission dated 18 February 1971 (PU(B) 548/75), the IGP was the proper Disciplinary Authority, he being vested with the delegated power to take disciplinary proceedings against 'all senior police officers of the rank of probationary inspector up to and including chief inspector (vide item 15 of the Instrument of Delegations). But what happened in this case was that the show cause letter dated 14 May 1980, which was signed by Penolong Pengarah Pengurusan (Tatatertib) on behalf of the IGP, had clearly stated that the letter was sent on the direction not of the IGP but of the Deputy IGP. Although the letter dated 21 August 1981 conveying the punishment appeared to have been written on the instruction of the IGP, in our judgment this does not satisfy the requirement of the GOD 30. The authority informing the punishment must be the same authority that instructs the proceeding leading to the punishment. Oral evidence was led to the effect that the IGP gave his instructions to his deputy to initiate the impugned disciplinary proceeding. In our view, such evidence should not be admitted and if admitted should not be acted upon because it is clear that under s 91 of the Evidence Act no evidence can be given in proof of any matter which is required by law to be reduced to a form of a document and s 92 prohibits the giving of oral evidence to contradict or vary or explain the terms of such document. A show cause letter has to be in the form of a document because para (2) of GOD 30 required a Disciplinary Authority to send to the officer who is subject to a disciplinary proceeding 'a statement in writing, prepared, if necessary, with the aid of the Legal Department'. Since the letter to show cause clearly said that the Deputy IGP has caused the letter to be sent, on that ground alone the appeal should be dismissed. [emphasis added]

13. It is plain from the concluding words in the foregoing passage (to which we have lent emphasis) that the defendant's appeal could have been disposed of upon the first issue. However, the learned Lord President proceeded to deal with the other issue as well. He said:

    As regards the second issue, i.e. whether or not there has been sufficient compliance of para (2) of GOD 30, our views are as follows. Reduction in rank and dismissal are the two most severe punishments that can be imposed upon a civil servant guilty of misconduct. For this reason, the proceedings with a view to dismissal or reduction in rank have to be slightly different in that the show cause letter must bring to the attention of the civil servant concerned of the contemplated punishments to make him appreciate the gravity of the situation and thus enable him to give a satisfactory explanation as best as he could. This is clear from the wording contained in para (2) of GOD 30, i.e. 'a statement in writing, prepared, if necessary, with the aid of the Legal Department, of the ground or grounds on which it is proposed to dismiss the officer or reduce him in rank ....' This phraseology 'of the ground or grounds on which it is proposed to dismiss the officer or reduce him in rank', however, does not appear in GOD 29 which deals with disciplinary proceedings not meriting punishment of dismissal or reduction in rank. Looking at the show cause letter dated 14 May 1980, we see nothing in it which shows that the Disciplinary Authority intended or contemplated the punishment of reduction in rank. It is not therefore surprising for the respondent to reply to the allegation of misconduct without assistance of counsel which he said in his evidence he would have done if he had known the gravity of the situation he had to face. Furthermore, the time lapse between his reply and the punishment clearly gave him hope that whatever punishment to be imposed on him will not be so serious as the one actually imposed. In our view, the Disciplinary Authority here made a fatal mistake which rendered the disciplinary proceedings null and void. [emphasis added]

14. The learned Lord President, having dealt with the two issues that arose for decision went on to criticise the observation of Ajaib Singh J, in the passage earlier quoted. He said (at p 262):

    As it stands, this passage appears to be misleading. This passage should be read in the light of the factual situation of this case, wherein the show cause letter dated 14 May 1980 was completely silent as to the contemplated punishment to be imposed at the end of the disciplinary proceedings. Therefore, in order to ensure that the respondent understood and appreciated the seriousness of the proceedings he was facing, the learned trial Judge was right in insisting that another chance must be given to him, which he called a plea of mitigation. If, however, the show cause letter had included the proposed punishment, for example, by the inclusion of such statement as 'This proceeding is taken against you with a view to dismissal or reduction in rank ....' or 'This proceeding is taken under GOD 3 0 with a view to dismissal or reduction in rank' ..., or such other phraseology as would give the effect of making the respondent understand the nature of the proceedings and what they would lead to, there is no necessity for the appellants to give another opportunity of being heard before the punishment is imposed.