Judicial review applications challenging administrative decisions are premature if the matter is still pending before an appointed tribunal.

JUDGMENT

Ahmad Kamal Md Shahid J:

Introduction

[1] The Applicant had filed an application for judicial review proceedings (encl 6) under O 53 of the Rules of 2012 (ROC).

[2] The Applicant is seeking the following reliefs:

2.1 Bahawa kebenaran diberi kepada Pemohon yang tersebut di atas untuk memohon suatu Perintah Certiorari untuk dikemukakan dan untuk mengenepikan atau membatalkan keputusan Suruhanjaya Koperasi Malaysia bertarikh 2 Julai 2020;

2.2 Bahawa semua prosiding-prosiding lanjutan atau permohonan berhubung dengan keputusan Suruhanjaya Koperasi Malaysia bertarikh 2 Julai 2020 digantung sehingga perkara ini ditentukan oleh Mahkamah yang Mulia ini;

2.3 Bahawa semua arahan sebagaimana yang perlu dan sesuai diberikan; dan

2.4 Bahawa kos permohonan ini dan beriringan permohonan ini dijadikan kos dalam kausa.

[3] In gist, the Applicant's judicial review application among others is for an order of certiorari to quash the decision of the First Respondent given on 2 July 2020 to refer the Second Respondent's dispute with the Applicant to the First Respondent's Tribunal under ss 82(3)(ba) and 83(2) of the Co-operative Societies Act 1993 (Act 502).

[4] After the hearing, I dismissed the Applicant's application in encl 6. The grounds for my decision appear below.

Background Facts

[5] The background facts gathered from the cause papers and submissions by parties can be summarised as follows:

5.1 The Second Respondent commenced employment with the Applicant in 1984. The Applicant then subsequently promoted the Second Respondent as the General Manager and convert his regular appointment into a contractual appointment;

5.2 The Applicant's Board endorsed the new contractual appointment of 5 years with effect from 1 May 2013 which was to be followed by a mandatory extension of 3 years until he reaches, the age of retirement at 60 years;

5.3 The Applicant's EXCO with its membership of all the principal office bearers on 30 January 2018 decided to promote the Second Respondent as its CEO. Once again, the Second Respondent was offered a fresh 5 years contract of service followed by an extension of 3 years of contractual service commencing on 1 January 2018;

5.4 The Second Respondent alleged that within 3 months of his promotion, the Applicant's Board at its meeting on 14 March 2018 compelled the Second Respondent to decline his promotion and revert to his previous position as General Manager;

5.5 The Second Respondent then was dismissed on 6 July 2018 for alleged serious misconduct of converting the excess balance in the members and/or borrower's loan account into unlawful profits for the Co-Operative when those excess balances were to be rightfully refunded back to the member and/or borrower;

5.6 The Second Respondent is not satisfied with the dismissal filed a representation under s 20 of the Industrial Relations Act 1967 ( IRA ) in the Industrial Relations Department and his representation was duly referred to the industrial Court under the case number 14/4-3067/18 and the matter is now pending at the Kuala Lumpur Industrial Court;

5.7 The Second Respondent in addition to reinstatement also pleaded in his Statement of Case dated 11 January 2019 filed at the Industrial Court for his gratuity payment and various other payment amounting to RM4,329,557.12;

5.8 The Second Respondent, midway through his Industrial Court case proceeded to file a complaint with the First Respondent under s 82(1) of Act 502 and claimed the same gratuity payment claimed before the Industrial Court; and

5.9 The Second Respondent filed Form A which is the Statement of Dispute dated 25 June 2020 and the matter was duly referred to the Tribunal by the First Respondent on 2 July 2020.

The Law

[6] It is trite that a decision in the exercise of public duties and functions may be reviewed on the grounds of illegality, irrationality, procedural impropriety and also disproportionality.

(See Akira Sales & Services (M) Sdn Bhd v. Nadiah Zee Abdullah & Another Appeal, [2018] 2 MLJ 537; Norizan