Judgment

Abdoolcader J

1. This appeal by the appellant who was an Enforcement Officer in the Road Transport Department is against the dismissal by Vohrah J, on 27 September 1980 of his claim for a declaration, as the core of the relief he seeks, that the termination of his service in the public interest under s 10(d) of the Pensions Ordinance, 1951 and General O 44 of the General Orders contained in the Public Officers (Conduct and Discipline) (General Orders, Ch D) Regulations, 1969 set out in the Schedule to the Essential (General Orders, Ch D) Regulations, 1969 was void, inoperative and of no effect. To obviate prolixity, all references in this judgment to General Orders allude to the General Orders (abbreviated as ‘GO’ in relation to both singular and plural according to the context) enacted in the 1969 Regulations which have since been repealed with effect from 17 July 1980 except for GO 44 which is deemed to have been repealed on 30 December 1978 and replaced by the Public Officers (Conduct and Discipline) (Ch “D”) General Orders, 1980 but which do not however affect these proceedings.

2. The appellant was appointed as an Enforcement Officer on probation on 17 April 1961 and placed on the pensionable establishment on 17 April 1964. He was posted for duty in several States and on 16 April 1969 he was appointed Acting Registrar and Inspector of Motor Vehicles with an acting allowance and transferred to Johore as such on 21 April 1969. He was interdicted from duty on 30 April 1969 consequent to his arrest on a charge of attempted corruption but was acquitted on 30 July 1970. He resumed duty on 22 August 1970 as an Enforcement Officer and was not reinstated as Acting Registrar and Inspector of Motor Vehicles but he has now abandoned the contention raised in the court below as to alleged reduction in rank in this respect.

3. The Public Services Commission wrote to the appellant on 22 May 1971 stating that from a report from the Director General of Road Transport he appeared to be in control of pecuniary resources and property disproportionate to his official emoluments and known private means, and that the Disciplinary Authority had considered the report and had decided to take disciplinary action against him under GO 8 and requiring him to submit an explanation within 14 days. The appellant submitted his explanation as required by a letter dated 19 June 1971 followed by another letter on 1 August 1971 and he was informed by the Secretary to the Public Services Commission by a letter dated 13 August 1971 that his explanation had been considered on 19 July 1971 by the Public Services Commission which had recommended to the Government, the second respondent, the action which ought to be taken against him and that he would be informed by the Director General of Public Services, the first respondent (in the Malay rendition), of the decision made in this respect.

4. The first respondent then informed the appellant in a letter dated 13 October 1971 that in exercise of the powers conferred by the Pensions Ordinance the second respondent had decided to terminate his service in the public interest under s 10(d) of the Ordinance and GO 44 and that the termination would be effective as soon as he had taken all the leave he was entitled to and that the question of his eligibility to receive a pension would be dealt with by the second respondent in accordance with the Ordinance. The appellant put in written appeals against the termination of his service to the Registrar and Inspector of Motor Vehicles, Johore, the first respondent, the Secretary to the Public Services Commission and other officials, but he was informed that the Public Services Commission had no authority to consider any appeal against a decision under the Pensions Ordinance and the GO. The appellant’s record of service discloses that he retired from the public service on 8 December 1971.

5. The gist of the appellant’s complaint is that the termination of his service was penal in character and effect and amounted to a dismissal and was in breach of the rules of natural justice in that the contents of the report against him were not disclosed to him and he was not given a fair opportunity to controvert any adverse allegations made, his retirement from the public service was not effected by the Yang di-Pertuan Agong as it should have been under s 10(d) of the Pensions Ordinance but by the second respondent and that the exercise of the power to terminate his service in the public interest under GO 44 after the initial application of GO 8 without recourse to the procedure stipulated in GO 30 as required by GO 8(2) was an abuse of power and made in bad faith.

6. The appeal is presented before us only on two grounds in a composite contention that can be neatly summarised as an allegation of malice in blunderland, scilicet (1) that as action was initiated under GO 8, then the procedure under GO 27 and 30 should apply and have been observed and the failure to do so has resulted in denying the appellant natural justice by compliance with the requisite procedure laid down in GO 30 and that in the circumstances GO 44 could not apply or be resorted to, and the purported termination thereunder was accordingly an exercise of bad faith and an abuse of power: and (2) that the requirement for the appellant to retire from the public service on the termination of his employment in the public interest under s 10(d) of the Pensions Ordinance could only be exercised by the Yang di-Pertuan Agong as required thereby and not by the second respondent as intimated by the first respondent and that this accordingly vitiated the exercise of the power under that statutory provision.

7. In view of the constant reference that will be made thereto, it would perhaps be convenient and appropriate to set out the provisions of GO 8 and 44 which lay down:

   8.

   (1) Where the Disciplinary Authority is of the opinion that an officer is or appears to be – (i) maintaining a standard of living which is not commensurate with the official emoluments and any known private means, if any; or (ii) in control of or in possession of pecuniary resources or property, movable or immovable, which are disproportionate to his official emoluments and his known private means or which could not reasonably be expected to have been acquired by the officer with his official emoluments and any known private means, the Disciplinary Authority may call upon the officer to explain how he is able to maintain the said standard of living or how he came by his pecuniary resources or property. (2) If, when called upon, the officer fails to give any explanation or gives an explanation which does not satisfy the Disciplinary Authority, the Disciplinary Authority may thereupon take disciplinary action with a view to dismissal in accordance with General O 30 or take such steps as the Disciplinary Authority may deem fit.

   44.

   (1) Notwithstanding these General Orders, where it is represented to or is found by the Government that it is desirable that any officer should be required to retire from the public service in the public interest or on grounds which cannot suitably be dealt with by the procedure laid down in these General Orders, the Government may call for a full report from the Head of Department in which the officer is serving. The said report shall contain particulars relating to the work and conduct of the officer and the comments, if any, of the Head of Department. (2) Where the Government considers that it requires further clarification, if may cause to be communicated to the officer the complaints by reason of which the termination of his service is contemplated. (3) If after considering the report or (in the case of the Government having communicated to the officer as in para (2) after giving the officer an opportunity of submitting a reply to the complaints the Government is satisfied that having regard to the conditions of the services, the usefulness of the officer thereto, the work and conduct of the officer and all the other circumstances of the case, it is desirable in the public interest so to do, the Government may terminate the service of the officer with effect from such date as the Government shall specify. (4) Where the Disciplinary Authority has recommended to the Government that an officer should be required to retire from the public service in the public interest, the Government may so terminate the service of the said officer. (5) In every case of such termination of service of an officer under this General Order, the question of pension shall be dealt with in accordance with the law relating to pensions.

8. The appellant contends on the first ground that as recourse was had in the first place to GO 8, any disciplinary action taken with a view to dismissal must be in accordance with the procedure stipulated in GO 30 and that it was not open to the second respondent to circumvent that procedure by resorting to the provisions of GO 44. The respondents’ case is that GO 8 is a self-contained code empowering the Disciplinary Authority to investigate the conduct of an officer to ascertain if he is living beyond his private means or official emoluments or is in control or possession of pecuniary resources or property disproportionate to his official emoluments and known private means; it is merely a machinery provision for this purpose and it is only after receiving an explanation from the officer that the Disciplinary Authority has to decide the action to be taken in respect of which there are two alternatives under GO 8(2), either to (a) proceed to take disciplinary action with a view to dismissal under GO 30 or (b) take such steps as the Disciplinary Authority may deem fit. Before us, Mr Lim Beng Choon, Senior Federal Counsel appearing for the respondents, changed gear from a combined first and third to the fourth, to use a graphically relative numerical paradigm from the language of the automobile, practically putting into reverse gear in the process the stand he took in the court below, and now submits that the termination of the appellant’s service in the present proceedings was made under GO 44(4) and not GO 44(1) and (3) in that, relying on the letter of 13 August 1971 from the Secretary to the Public Services Commission to the appellant we have mentioned, the Disciplinary Authority acting under the second alternative open to it under GO 8(2) had recommended to the second respondent that the appellant should be required to retire from the public service in the public interest and the second respondent had terminated his service accordingly as provided for in para (4) of GO 44.

9. It is clear from the documentary evidence in this case that the Public Services Commission purported to act as the Disciplinary Authority for the purposes of GO 8 and, indeed, if GO 44(4) had been resorted to, under that provision as well, and if so then the crucial question is whether the Public Services Commission was in fact the Disciplinary Authority as defined in the GO, a matter the learned judge did not find necessary to consider or decide in arriving at his decision. Article 144(5B)(i) of the Federal Constitution provides for the powers and functions of the Public Services Commission other than the power of first appointment to the permanent or pensionable establishment to be exercised by a board appointed by the Yang di-Pertuan Agong and para (iv) of Article 144(5B) enacts that where such a board has been appointed the powers or functions entrusted to it shall so long as they remain exercisable by the board cease to be exercisable by the Commission. The Public Services Disciplinary Board Regulations, 1967 which came into force on 1 July 1967 (but now repealed and substituted by the Public Services Disciplinary Board Regulations, 1972 which took effect 1 January 1972) established Public Services Disciplinary Boards with jurisdiction to exercise functions in matters relating to discipline over all members of the general public service of the Federation and the joint public services mentioned in Article 133 of the Constitution but with no jurisdiction, in relation to an officer of the appellant’s category in the public service, to exercise the disciplinary powers of dismissal, reduction in rank or deferment of increment.

10. The Disciplinary Authority referred to in GO 8 and 44(4) is defined in GO 2 to mean (so far as material for the appellant’s purposes) the Public Services Commission and includes a board appointed and vested with the Commission’s functions relating to disciplinary control under cl (5B) of Article 144 of the Constitution. Since the excepted functions and powers, in particular the disciplinary power of dismissal, are not involved in proceeding under GO 8(1) and 44(4), the Disciplinary Authority in this case was therefore the Public Services Disciplinary Board we have referred to and by virtue of the explicit provisions of Article 144(5B)(iv) of the Constitution the Public Services Commission was precluded from acting as it purported to do under GO 8 or, if it did so, under GO 44(4) in relation to the appellant in this matter. It does not appeal therefore that the second respondent can rely on the application of GO 44(4) as Senior Federal Counsel now seeks to contend. We would en passant briefly observe, in deference to the argument of Mr Sivalingam for the appellant on this aspect, that if the power of termination under GO 44(4) could and did apply had there been a recommendation thereunder by the properly constituted Disciplinary Authority, the recommendation so made would be sui generis in the exercise of the second alternative course available to the Disciplinary Authority under GO 8(2) of taking such steps as it may deem fit in determining the action to be taken thereunder, and is distinct from and additional with no relation to a similar recommendation under GO 30(11)(c) which only provides for such a recommendation as one of the options open to the Disciplinary Authority as an alternative to imposing disciplinary punishment after completion of the procedure laid down in GO 30, bringing it within the first course open to it under GO 8(2).

11. The question then arises whether, after the initiation of action under the provisions of GO 8, it was open to the second respondent to exercise its powers under GO 44(1) and (3), bearing in mind moreover that the process initiated under GO 8 was effected by the wrong entity purporting to act as the Disciplinary Authority and was therefore abortive and invalid. Mr Sivalingam says it was not and that the application of GO 44 in the circumstances was an abuse of power and an act of bad faith. We regret we cannot agree. GO 44 comes under Pt IV of the GO under the heading “Miscellaneous” and opens with the significant non obstante clause “Notwithstanding these General Orders, ...,” thus making it quite separate and distinct from the preceding three Parts of the GO dealing with conduct, disciplinary procedure and general provisions pertaining to disciplinary punishments. GO 44 goes therefore beyond and is additional to what precedes it and recourse to its provisions even by way of a change in midstream, so to speak, is not per se an act of caprice or bad faith.

12. In Westminister Bank Ltd v Minister of Housing and Local Government [1971] AC 508 the House of Lords held that in a situation where the exercise of power under one Act might give compensation but under another would not, and both would achieve the same ends, it is not an excess or abuse of power to exercise that given by the second Act. In Yeap Hock Seng alias Ah Seng v Minister for Home Affairs, Malaysia [1975] 2 MLJ 279 the detenu was tentatively arraigned on a charge of murder but was granted a discharge at the request of the prosecution and was then immediately apprehended as he walked out of the court and put under preventive detention which precluded any trial: it was held that the detention could not be impugned on the ground of mala fides. In Najar Singh v Government of Malaysia [1976] 1 MLJ 203 the Privy Council held in respect of the dismissal of a police officer that even if he could have been dealt with under the Police Regulations, 1970 that would not prevent his being dealt with under the General Orders pertaining to the conduct and discipline of public officers.

13. In Sidney Godfrey De Zoysa v Public Service Commission [1963] 1 WLR 262 the Privy Council also held in a case pertaining to the compulsory retirement of a police officer that there was no necessary inconsistency between two different sets of regulations and rules which ran in parallel streams and that if the head of the department initiated the procedure under the regulations where he considered it to be in the public interest that an officer should be required to retire at the age of optional retirement, then the authorities should comply with the terms of the relevant regulation but that was without prejudice to the powers of the Public Service Commission under a different set of rules to require a police officer to retire at 50 as their power under the rule in question was unqualified and required no preliminary steps for the justification of an order and that rule was clear in its terms and afforded complete justification for their action and they acted within their powers in requiring the appellant in that case to retire. In Government of Malaysia v Lionel [1974] 1 MLJ 3 the Privy Council allowing the appeal and restoring the order of the trial judge held that the respondent in that case had not been dismissed under the General Orders applicable to his employment but that his services were validly terminated in accordance with the terms of his appointment.

14. We advert to the terms of GO 44(1). There is a non obstante clause as we have observed and that paragraph refers to representations to or a finding by the second respondent that it is desirable that an officer should be required to retire from the public service in the public interest or on grounds which cannot suitably be dealt with by the procedure laid down in the GO and goes on to provide that the second respondent may call for a full report from the head of department in which the officer is serving. Paragraph (2) of GO 44 was not invoked by the second respondent in these proceedings and it did not have to in its discretion and we now turn to para (3) thereof. Mr Sivalingam further submits that the termination of the service of an officer in the public interest under GO 44(3) can only be made effective if in accordance with the terms of that paragraph the second respondent has considered the report, which clearly refers to a report that may be called for by the second respondent under para (1) of that GO. He says that there is no evidence of any such report having been called for for the purposes of para (1) of GO 44 and in these circumstances in view of the provisions of para (3) there could be no termination of the appellant’s service.

15. GO 44(1) does not make the calling of a report from the head of department mandatory and imperative but only directory and discretionary, unlike the requirements therein as to the contents of any such report called for which are obligatory, and even para (2) of GO 44 regarding communication to the officer concerned of the complaints against him is discretionary and only where the second respondent considers that the report requires further clarification. As the report under para (1) is not mandatory, para (3) of GO 44 must on a proper, reasonable, harmonious and purposive construction read to mean that consideration of the report only takes place when such a report has in fact been called for but not otherwise but the second respondent has to be satisfied under that paragraph that it is desirable in the public interest to terminate the service of the officer having regard to the conditions of the service, the usefulness of the officer thereto, the work and conduct of the officer and all the other circumstances of the case. The logical sequence to the argument for the appellant, demonstrating its fallacy, would be that if in fact representations have been made to the second respondent in a report from a head of department in respect of an officer which makes it desirable for his retirement from the public service in the public interest, then before such termination can be effected under GO 44(3), it will still be necessary for the second respondent to call for another report all over again under GO 44(1), as GO 44(3) refers, as we have pointed out, to a report called for under para (1) of GO 44. It would only be consonant with common sense to conclude that in the event of any such precedent representations it will be open to the second respondent to proceed under GO 44(3) without calling for any further report under para (1) of that GO. In any event, however, there would appear to be a report from the Director General of Road Transport which is referred to in the letter of 22 May 1971 from the Secretary to the Public Services Commission to the appellan.e

16. On the question of public interest, the matter was one for the second respondent to determine and the acquisition of pecuniary resources or property beyond an officer’s known income or means is certainly not in the public interest and must of necessity be a matter of grave public concern. On the evidence disclosed in these proceedings there was sufficient material for the second respondent’s decision on the question of public interest and it has not been established that it was made without justification or evinced any lack of good faith. In Asher v Secretary of State for the Environment [1974] Ch 208 in which alternative courses were open to the Minister, the English Court of Appeal held that it was for the Minister to decide which of several courses open to him was the best course to take, and, so long as he acted in good faith and not frivolously or vexatiously, his decision could not be questioned, and that even if, when directing an extraordinary audit, he had in mind that a surcharge consequent on the audit would result in the disqualification of the councillors he had not thereby exercised his power for an improper purpose. There is an extremely heavy burden on the appellant to discharge in order to prove an allegation of bad faith (Yeap Hock Seng [1975] 2 MLJ 279 (at page 284) and the appellant has not accomplished this in the light of the evidence and the circumstances of this case.

17. There is no punitive element involved either in the termination of the appellant’s service in the public interest. He has not been denied a pension and indeed the indication is that he will indeed be paid a pension once his pension factor is determined. We have already referred to the letter of 13 October 1971 intimating that the question of his eligibility to receive a pension would be dealt with by the second respondent in accordance with the Pensions Ordinance, and there is a further letter to him dated 5 May 1972 from the Secretary General to the Ministry of Communications informing him that his pension factor had not been approved as yet by the first respondent but that when the approval was received by the Ministry action would be taken for payment of the pension to him. The appellant also admitted under cross-examination that he has not been told that he could not draw a pension.

18. In all the circumstances we find that the termination of the appellant’s service was properly effected under GO 44 in the public interest, that it was not a convoluted process to disguise a dismissal with a denial of the procedure provided for in GO 30 and that there was no abuse of power or mala fides in proceeding as the second respondent did under GO 44 although the initial action purported to be under GO 8. There is accordingly also no question of any infraction of the appellant’s rights to appeal to an Appeal Board under Article 144(5B)(ii) of the Constitution and the Public Services Disciplinary Board Regulations, 1967 as he was not dismissed but was required to retire from the public service on the termination of his employment in the public interest.

19. The other point taken before us is that the letter of 13 October 1971 from the first respondent to the appellant intimating termination of his service in the public interest refers to a decision by the Government, the second respondent, and not the Yang di-Pertuan Agong (transposed in relation to the reference to the High Commissioner by the Federal Constitution (Modification of Laws) Order, 1957) who is the determining authority under the provisions of s 10 of the Pensions Ordinance as it stood at the material date before its amendment on 1 January 1976 which however, we would add, makes no difference to the position. The Yang di-Pertuan Agong is a constitutional monarch and is required under Article 40(1) of the Constitution in the exercise of his functions (except on certain matters that do not concern this appeal) to act in accordance with collective or individual ministerial advice and not on his own initiative (Teh Cheng Poh alias Char Meh v Public Prosecutor, Malaysia [1979] 1 MLJ 50; [1980] AC 458, 466, 473 (at pages 466, 473). In view of this the reference to the second respondent in the letter in question is no more than a loose use of the term to encapsulate the decision of the Yang di-Pertuan Agong for the purposes of s 10 of the Pensions Ordinance and this view is reinforced by the proper presumption that can be made in this respect by the reference in the letter of 13 October 1971 to the termination having been effected under s 10(d) of the Pensions Ordinance which specifically refers to the power of the Yang di-Pertuan Agong to require an officer to retire from the public service on the termination of his employment in the public interest. Section 10 of the Pensions Ordinance must be read in the light of s 8 thereof, sub-s (1) of which provides that no pension shall be granted under the Ordinance to any officer until he shall have retired from the public service and sub-s (2) whereof is in like terms as s 10 of the Ordinance in prescribing that no pension shall be granted to any officer who has retired from the public service otherwise than as specified therein. Further support for the presumption of the Yang di-Pertuan Agong’s exercise of his power on ministerial advice again appears in the letter of 13 October 1971 which goes on to state that the question of the appellant’s eligibility for a pension would be dealt with under the Pensions Ordinance and also in the subsequent letter of 5 May 1972 indicating that when approval as to the appellant’s pension factor was received action would be taken for the pension to be paid to him.

20. It might perhaps be useful and appropriate to elaborate somewhat on the use of the term ‘Government’ around which the nub of the appellant’s contention on this point revolves by referring to the decision of the House of Lords in Town Investments Ltd v Department of the Environment [1978] AC 359, 397 when, in discussing the relationship of the Queen acting in a political capacity and the administration, the House held per curiam : ‘It is not private but public law that governs the relationships between Her Majesty the Queen acting in her political capacity, the government departments among which the work of Her Majesty’s government is distributed, the ministers of the Crown in charge of the various departments and civil servants of all grades employed in those departments. To speak nowadays of “the Crown” as doing legislative or executive acts of government, which, in reality as distinct from legal fiction, are decided on and done by human beings other than the Queen herself, involves risk of confusion. It would be better, instead of speaking of “the Crown,” to speak of “the government” – a term appropriate to embrace both collectively and individually all of the ministers of the Crown and parliamentary secretaries under whose direction the administrative work of government is carried on by the civil servants employed in the various government departments. Executive acts of government that are done by any of them, in the name of Her Majesty or under their official designation, are acts done by “the Crown” in the fictional sense in which that expression is now used in English public law.’ We would particularly refer to the opinion of Lord Simon of Glaisdale (at page 397) when he said:

    ‘Her Majesty’ in constitutional legal usage thus generally personifies the powers of ‘the Crown’ – powers the nucleus of which legally and historically are those of The Queen, but which by constitutional convention (i.e., in political reality) are exercised in the name of The Queen by those who are nominally and legally her servants or agents.

21. When we speak of the Government, we refer to His Majesty’s Government which includes His Majesty the Yang di-Pertuan Agong and of which he is the constitutional head. The reference therefore to the second respondent in the letter of 13 October 1971 is sufficiently comprehensive to manifest the Yang di-Pertuan Agong’s participation in the decision made and would appeal to be no more than a composite term to intimate the exercise by the Yang di-Pertuan Agong of his powers under s 10 of the Pensions Ordinance on ministerial advice, and the communication by the first respondent of the decision so made by the second respondent is only indicative, to use the words of Brightman J, in Re Golden Chemical Products Ltd [1976] Ch 300, 307 (at page 307), applying the law as explained by Lord Greene MR, in Carltona, Ltd v Commissioners of Works [1943] 2 All ER 560, 563 (at page 563), of ‘a devolution of power – delegation is the wrong word’. In Lim Lian Geok v The Minister of the Interior, Federation of Malaya [1964] MLJ 158 it was accepted before the Privy Council that a notice of intended deprivation of citizenship was not in any way invalid because it was signed by the Registrar-General of Citizens and the contention that there had been a delegation by the Minister was abandoned; these were points of argument taken unsuccessfully in the courts below.

22. We cannot but reject in the circumstances the argument advanced that the Yang di-Pertuan Agong did not in fact require the appellant to retire from the public service on the termination of his employment in the public interest under s 10(d) of the Pensions Ordinance.

23. In any event even assuming for a moment for the sake of argument that the termination of the appellant’s service involves any punitive element or can be impugned on the basis of the contentions advanced, but we find it does not and cannot, the position is covered by the further proviso inserted in Article 135(2) of the Constitution on 31 December 1978 and made effective retrospectively as from 31 August 1957 to the effect that the termination of the service of a public officer in the public interest does not constitute dismissal on the grounds relied on by the appellant. This proviso would accordingly, if the appellant had any just cause for complaint, deprive him of any relief or remedy.

24. In the premises and for the reasons we have given, we dismiss this appeal with costs. The deposit in court by way of security will go to the respondents to account of their taxed costs.

Cases

Westminister Bank Ltd v Minister of Housing and Local Government [1971] AC 508

Yeap Hock Seng alias Ah Seng v Minister for Home Affairs, Malaysia [1975] 2 MLJ 279

Najar Singh v Government of Malaysia [1976] 1 MLJ 203

Sidney Godfrey De Zoysa v Public Service Commission [1963] 1 WLR 262

Government of Malaysia v Lionel [1974] 1 MLJ 3

Asher v Secretary of State for the Environment [1974] Ch 208

The Cheng Poh alias Char Mar v Public Prosecutor [1979] 1 MLJ 50; [1980] AC 458; 466; 473

Town Investments Ltd v Department of the Environment [1978] AC 359; 397

Re Golden Chemical Products Ltd [1976] Ch 300; 307

Carltona Ltd v Commissioner of Works [1943] 2 All ER 560; 563

Lim Lian Geok v Minister of Interior, Federation of Malaya [1964] MLJ 158

Representations

M Sivalingam (M/s Kean Chye & Sivalingam) for the appellant.

Lim Beng Choon (Senior Federal Counsel) for the respondents.

Notes:-

This decision is also reported at [1981] 2 MLJ 259.