The Minister acted unlawfully by referring employee claims to the Industrial Court without consideration for the Applicant's ongoing liquidation, violating statutory provisions requiring judicial leave.

Ahmad Kamal Md Shahid J:

Introduction

[1] The Applicant had filed judicial review applications No: WA-25-322-10/2020 (JR 322), No: WA-25-324-11/2020 (JR 324) and No: WA- 25-330-11/2020 (JR 330) under O 53 of the Rules of 2012 (ROC) for amongst others, an order of certiorari to quash the Decision of the Honourable Minister of Human Resources (the Minister) dated 4 August 2020 and 10 August 2020 respectively pursuant to s 20(3) of the Industrial Relations Act 1967 (Act 177) to refer the dismissal of the ex-Applicant's employee (the Respondents) to the Industrial Court.

[2] Both JR 324 and JR 330 are fixed to be heard together with this JR 322.

[3] After the hearing, I allowed the Applicant's application in JR 322, JR 324 and JR 330.

[4] Dissatisfied with the decision, the Respondents in JR 322 and JR 330 filed an appeal. However, the Respondent in JR 324 did not file any appeal against the decision. I will now set out the grounds for my decision.

Background Facts

[5] The narration of the background facts of the case is adopted with and/or without modifications from the Applicant's Affidavit in Support, Statement and Written Submissions of both parties and can be summarized as follows:

5.1 On 7 October 2019, the Board of Directors of the Applicant declared that the Applicant is unable to continue its business by reason of its liabilities and Datuk Tee Guan Pian was appointed as the interim liquidator for the Applicant.

5.2 Subsequently, a Members' and Creditors' Meetings were held separately on 6 November 2019 whereas Datuk Tee Guan Pian has been appointed as the Liquidator of the Applicant.

5.3 On 19 December 2019, following the Applicant's application to Court vide Originating Summons No.: WA-24NCC-678-12/2019, approval was granted to the Liquidator pursuant to s 456 of the Companies Act 2016 ( CA ) read together with the Eleventh Schedule to exercise all functions and powers of the Liquidator provided under Part I and II of the Twelfth Schedule of the .

5.4 The Respondents are the ex-employees of the Applicant herein that has lodged a representation to the Director General of Industrial Relations (DG of IR) on their termination - from the Applicant.

5.5 Pursuant to the liquidation of the Applicant on 7 October 2019, the Applicant has ceased its operation which in turn led to the termination of all the employees of the Applicant inclusive of the Respondents herein.

5.6 The Respondents together with 347 ex-employees of the Applicant herein have lodged a representation to the DG of IR.

5.7 The DG of IR upon receipt of the representation called for reconciliation meetings between the Respondents and other ex-employees (in a separate meeting) with the Liquidator of the Applicant, but was unsuccessful. Thereafter, the DG of IR referred the matter to the Minister.

5.8 Vide letter dated 4 August 2020, the Minister decided for the representations of the Respondents to be referred to the Industrial Court under s 20(3) of Act 177. (the said Decision)

The Applicant's Grounds For The Judicial Review

[6] The Applicant's applications herein are based on the following grounds:

6.1 The Minister has misdirected himself in law and had acted without jurisdiction and/or exceeded the powers given to him under the law and had misused his discretion by failing to take into consideration the following:

(a) That the Applicant herein has been placed, under Creditors Voluntary Liquidation (CVL) on 7 October 2019;

(b) Pursuant to s 451(2) of the CA , no action or proceeding shall be proceeded with or commenced against the Applicant without leave from the Court; and

(c) The remedy sought by the Respondents herein can be dealt with in liquidation process as the Respondents have filed Proofs of Debt.

[7] By issuing the said Decision:

(a) The Minister has acted without any jurisdiction and/or illegality by allowing the representation to be referred to the Industrial Court when the Applicant has been placed in liquidation;

(b) The Minister has acted in excess of ju