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www.ipsofactoJ.com/archive/index.htm [1981] Part 7 Case 7 [FCM] |
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Judgment
Raja Azlan Shah CJ (Malaya)
(delivering the judgment of the Court)
This appeal is against the judgment of the learned judge dismissing an application by the plaintiff (appellant before us) for summary judgment in an action brought by the appellant against the University Technology Malaysia (respondents before us) for a declaration that the purported dismissal by the respondents (whom we shall call “the University”) of the appellant was ultra vires, illegal and void and that the appellant is entitled to be paid his salary and all emoluments as from the date of the purported dismissal.
The appellant was during the material period an Assistant Lecturer employed by the University. He was granted leave for period 21 to 24 June 1978 for the purpose of participating in the General Election. As he found the period insufficient he sent a telegram requesting for extension of leave which request was refused. Unfortunately, the letter refusing the leave was never received by the appellant but nevertheless he proceeded to go on leave without approval. On 13 July 1978 the Secretary of the Disciplinary Committee wrote a letter to the appellant to show cause in writing why disciplinary action should not be taken against him. On 25 July 1978 he replied giving his explanation. After a period of eight months the appellant received a letter dated 13 February 1979 stating that the University Council at its meeting held on 22 January 1979 considered the decision of the Disciplinary Committee on the complaint regarding the appellant’s absence without leave and the University Council decided to terminate his employment with effect from 15 February 1979. We reproduce excerpts of the said letter [translation]:
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Mr. Fadzil Mohd Noor, Human Resource Centre, Universiti Teknologi Malaysia. Sir, Please be informed that the Council of University Technology Malaysia had held a Special Meeting on 22nd January 1970 to consider the declarations submitted by the Disciplinary Board concerning the complaints that you have breached the direction of the University and have further failed to attend to your duties without leave from 26th June till 10th July of 1978. .... After having studied the matter carefully the Council found you guilty of breaching the direction of the University and for failing to attend to your duties from 26th June 1978 till 10th July 1978 without leave. .... Hence by reason of your guilt the Council held the view that no better alternative actions are available than your dismissal. With that you are hereby informed that you are now dismissed by the Council of University Technology Malaysia with effect from 15th February 1979. Yours faithfully, Vice Chancellor |
On 17 July 1979 the appellant filed a specially endorsed writ in which he asked for a declaration mentioned above. On 8 August 1979 he unsuccessfully applied by way of summons-in-chambers for summary judgment in terms of the statement of claim.
The argument on the appeal ranged over wide matters, but as it developed it became apparent that the appeal should be disposed of on a ground relating to ultra vires and that it was unnecessary to call on counsel to argue other issues.
The question of whether or not the purported dismissal was validly made is now in substance the question raised in this appeal.
It is plain from the course of events, as set out in the judgment of the learned judge, that the whole matter was dealt with by the Disciplinary Committee, purporting to act as the delegate of the University Council. Thus the question arises whether the disciplinary authority of the University in respect of a member of the staff was in law a delegated power of the Disciplinary Committee. The learned judge seems to think that the disciplinary authority is vested in the University Council and that the Council had power to delegate and did in fact delegate it to the Disciplinary Committee by virtue of s 16A of the Universities and University Colleges Act, 1971 (Act 30 of 1971). He found some support for this conclusion in the language of sub-s (5) of s 16A of the Act which provides for the right of appeal of any person dissatisfied with the decision of the Disciplinary Committee to the University Council and which he construed as not restricting the power of the University Council to appoint or dismiss officers and staff of the University as conferred by its Constitution. Section 4(1)(m) and s 16 of the Constitution of the University were also referred to and applied. The difficulty in the way of this conclusion is that it finds no support from the language used in the Act or Constitution.
We are of the view that this appeal turns ultimately, and we think exclusively, on the proper meaning and operation of ss 7, 16A and 16C of Act 30 of 1971 and s 4(1)(m) and s 16 of the Constitution of the University. We reproduce the relevant provisions in some detail:
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7. |
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16A |
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16C |
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It may be noted the disciplinary rules, contained in a detailed and elaborate code which prescribes the procedure, which is fair and appropriate, to be followed when there is an allegation of a disciplinary offence, were gazetted only on 15 February 1979 (PU(A) 22/79), that is on the same day the purported dismissal was made by the University Council. Therefore at the material time there were no disciplinary rules, and as such, no known disciplinary offences created and no known disciplinary punishments provided.
The powers conferred on the University as defined in s 7(1)(e) of Act 30 of 1971 are enumerated in s 4 of the Constitution of the University – (PU(A) 231 of 1976): Subsection (1) reads:
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4. |
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By virtue of the provisions of ss 7(2) and 16A of the parent Act, disciplinary powers under this provision of the Constitution are exercisable only by the Disciplinary Committee.
The powers of the University Council are contained in s 16 of the Constitution. It reads:
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The Council shall be the executive body of the University, and may exercise all the powers conferred on the University, save in so far as they are by this Constitution or the Statutes, Acts and Regulations conferred on some other Authority or body or on some officer of the University: ..... |
This provision in the Constitution constitutes the University Council as the executive body of the University and not the disciplinary authority and must necessarily be limited in scope and read in the light of the relevant provisions of the enabling Act we have just referred to.
The University was incorporated under Act 30 of 1971. It is a corporate body, and as such it can only do such acts as are authorised directly or indirectly by the statute creating it: see Attorney General v Leeds Corp [1929] 2 Ch 291. In Public Textiles Bhd v Lembaga Letrik Negara [1976] 2 MLJ 58 this court said in relation to a corporation that whatever is not permitted expressly or by necessary implication by the incorporating statute is prohibited not by the express or implied prohibition of the legislature but by the principle of ultra vires. Therefore the university authority can only act in pursuance of the powers given to it by law. It follows that it has to follow proper procedure as prescribed by law before condemning an erring member of the staff. If it goes outside its limit of operation, or is not warranted by it, then any decision made by it is ultra vires.
To elaborate somewhat, the University Council in the present case is the executive body of the University. It may exercise all the powers conferred on the University by Act 30 of 1971 or the Constitution. But such powers are circumscribed. Subsection (2) of s 7 of the Act enacts “unless otherwise expressly provided by this Act or the Constitution”. The general powers of the University Council do not by virtue of s 16A of the Act extend to disciplinary matters. Such matters are conferred on and vested in the Disciplinary Committee alone. That committee must itself take the responsibility of deciding a disciplinary case, that is to say, the charge and the consequences of a positive finding upon it. The University Council’s limited role in this matter is as an appellate body exercising judicial function for the determination of appeals from any decisions of the Disciplinary Committee. It is, therefore, obvious that the functions of these two bodies are separate and distinct. The Act deals with the situation in language which could scarcely be plainer. And it pointedly omits any reference to delegation. It prescribes the bodies who are to be the disciplinary authority and the appellate authority. Such being their respective jurisdiction, we are of the opinion that the purported exercise of jurisdiction by the University Council in dismissing the appellant was ultra vires its powers. The University Council was purporting to do the very thing which, by Act 30 of 1971 and the Constitution, it was prohibited from doing.
It was further argued that since there were no disciplinary rules at the material time and therefore no disciplinary action that could be taken by the Disciplinary Committee, the power of disciplinary dismissal was still vested in the University Council. As such the University Council could dismiss the appellant under the master and servant principle. In Ridge v Baldwin [1963] 2 All ER 66 Lord Reid developed the point in an illuminating way. He said, inter alia, that in a pure master and servant case, dismissal is governed by the law of contract inter partes and there is no right to be heard. In other words, in a pure master and servant relationship, the principles of administrative law, including those of natural justice have no part to play. The administrative law remedies, such as a declaration that the dismissal is ultra vires is not available; no order for reinstatement can be made. The most that can be obtained is damages, if the dismissal is wrongful. In Malloch v Aberdeen Corp [1971] 2 All ER 1278, 1294, Lord Wilberforce took that point to mean “cases in which there is no element of public employment or service, no support by statute, nothing in the nature of an office or a status which is capable of protection”. In cases where such an element is present, Lord Wilberforce pointed out that “there may be essential procedural requirements to be observed, and failure to observe them may result in a dismissal being declared void”. In that case the House of Lords held that a school teacher had a special status conferred on him by statute which converted him from being a public servant holding office at the pleasure of a public authority into a servant who, by virtue of his statutory position, had implied into that position the right to be heard. Lord Wilberforce stated (p 1294):
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The argument that, once it is shown that the relevant relationship is that of master and servant, this is sufficient to exclude the requirements of natural justice is often found .... A comparative list of situations in which persons have been held entitled or not entitled to a hearing, or to observation of rules of natural justice, according to the master and servant test, looks illogical and even bizarre. |
Lord Wilberforce’s speech is important because it opens the way for there to be a general application of the principles of natural justice to the employment relationship.
Clearly this is not a straight-forward case of master and servant. The appellant as an Assistant Lecturer employed by the University, has a status supported by statute and is entitled to the protection of a hearing before the appropriate disciplinary authority, including the right of appeal to the University Council from the decision of that authority. If that right is violated, as happened here, then the court may allow declaratory relief, enabling him to retain his employment, and continued eligibility to be paid his salary and all emoluments from the date of the purported dismissal. The point is, here, the appellant’s employment had never been terminated. It would be open to the University at any time hereafter to dismiss him if it so chooses to do and does so in a lawful manner. Until it chooses to do that the appellant’s contract of employment will continue. We find it hard to believe that in a field of employment such as the present, the legislature can really be said to have intended that the appellant is ipso facto to be deprived of his employment without any regard for vested right. To say that there were no disciplinary rules under which he could be charged is an argument which has only to be stated to be rejected.
We now consider the application for summary judgment. It was rightly raised by counsel for the University that the case turns on the interpretation of the provisions of Act 30 of 1971 and the Constitution of the University, and therefore the court ought to be very cautious in treating it under O 14. We are disposed to agree with that argument for this reason; not that cases depending on the interpretation of a statute or statutes deserve any different treatment from that of any other case under O 14. An O 14 order in the view we have always taken of it is a very stringent procedure because it shuts the door of the court to the defendant. The jurisdiction ought only to be exercised in proper cases. If the University and University Colleges Acts and related legislation come into an O 14 case, no greater attention in principle is to be given by the court to that class of action than to any other class of action. The only point is that as everybody knows the pertinent legislation is long and complicated. But it is not sufficient under an O 14 case to flourish the title of the University and University Colleges Act, etc., in the face of the court and say that is enough to give leave to defend. If a point taken under the Acts is quite obviously an unarguable point, and the court is satisfied that it is really unarguable, the court has precisely the same duty under O 14 as it has in any other case. The court has the duty to apply the rule: (see Harry Tong Lee Hwa v Yong Kah Chin [1981] 2 MLJ 1).
In Esso Standard Malaya Bhd v Southern Cross Airways (M) Bhd [1972] 1 MLJ 168. I pointed out that in an O 14 case, where it turned on the construction of a few documents, and the court was only concerned with what, in its judgment, was the true construction, there could be no reason to go formally to trial where no further facts could emerge which would throw any light on the documents that had to be construed. We think we can safely apply that principle to the present case. On the view we have taken of the construction of Act 30 of 1971, and the Constitution of the University, the University had an absolutely hopeless case. The only function of the court is jus dicere and to ascertain the intention of Parliament from the words used in the statutes and nothing more. No useful purpose would then be served to go formally to trial.
We accordingly allowed the appeal.
Cases
Attorney General v Leeds Corp [1929] 2 Ch 291
Public Textiles Bhd v Lembaga Letrik Negara [1976] 2 MLJ 58
Ridge v Baldwin [1963] 2 All ER 66
Malloch v Aberdeen Corp [1971] 2 All ER 1278; 1294
Harry Tong Lee Hua v Yong Kah Chin [1981] 2 MLJ 1
Esso Standard Malaya Bhd v Southern Cross Airways (M) Bhd [1972] 1 MLJ 168
Representations
Peter Mooney (Mrs SS Jegathesan with him) (M/s Syed Ibrahim & Co) for the appellant.
VC George (M/s Zain & Co) for the respondent.
Notes:-
All translations are not a part of the original judgment.
This decision is also reported at [1981] 2 MLJ 196.
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