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2021 MarsdenLR 2619
HIGH COURT MALAYA SHAH ALAM
SAKTHI DEVI MUNIANDY @ SEGARAN & ANOR – Appellant
Versus
MEHAR BANU PAKEER MOHAMMAD & ORS – Respondent
[Civil Suit No: BA-21NCVC-21-04/2020]
Claims solely based on public law regarding public service dismissals must be pursued via judicial review, disregarding mixed procedures.
Headnote:(A) Public Officers (Conduct and Discipline) Regulations 1993 – Stakeholder rights concerning employment – This case involves the wrongful termination of government teachers, predicated on allegations related to misuse of funds, leading to a judicial review application against their dismissal – The court found that wrongful dismissal complaints should be pursued under judicial review only, per the precedent set in Ahmad Jefri Bin Mohd Jahri @ Md Johari v. Pengarah Kebudayaan & Kesenian Johor & Ors – Their claims for defamation and malicious falsehood remain valid. (Paras 1, 18, 22)
(B) Jurisdiction and Procedure – The court clarified that dismissals from public service must follow judicial review protocols; deviations render the proceedings an abuse of process. (Paras 22, 23)
Facts of the case: The plaintiffs, government school teachers, claimed wrongful dismissal after raising concerns about a headmistress's misconduct related to financial matters. They were dismissed following an indiscipline inquiry. (Paras 1, 3, 6, 23)
Findings of Court: The dismissal claim was struck out as an abuse of process, with a chance to pursue defamation claims remaining. (Para 23)
Issues: The main issue was whether the wrongful dismissal claim could proceed or was an abuse of process. (Para 18)
Ratio Decidendi: The court held that cases based solely on public law must be pursued via judicial review, categorically ruling out mixed procedures. (Para 22)
Result: The defendants' application to strike out the claim for wrongful dismissal was allowed.
JUDGMENT
The Application
[1] Sakthi Devi ("the first plaintiff") and Letchumy Subramaniam ("the second plaintiff") have commenced this action against Mehar Banu Binti Pakeer Mohammad ("the first defendant") Pejabat Pendidikan Daerah Kuala Selangor ("the second defendant") and 3 others to seek, inter-alia, a declaration that their termination and dismissal is null and void. The plaintiffs also have pleaded a cause of action in defamation and malicious falsehood against the first defendant.
[2] The defendants have applied under O 18 r 19 (1) (b) and (d) of the Rules of 2012 and/or the inherent jurisdiction of the Court to strike out the claim against them.
Background Facts
[3] The plaintiffs are government school teachers and worked at a school known as SJK (T) Ladang Sg Rambai. In 2017, the first defendant was posted to the said school as the headmistress. Problems developed between the first defendant and the teachers at the school. It transpired that the plaintiffs and the other teachers lodged a police report against the first defendant alleging misuse of monies in the PIBG account. They also made a complaint regarding the matter to the Selangor Education Department.
[4] The plaintiffs waited for feedback from the authorities on their complaints. Instead, they were served transfer orders requiring them to report to another school. They protested and filed an application for leave to apply for judicial review proceedings against the decision by the third defendant to transfer them.
[5] On 31 October 2017, the leave application was dismissed by the High Court. The Court held that transfer orders were not subject to review as decided by the Federal Court in Pengarah Pelajaran Wilayah Persekutuan & Ors v. Loot Ting Yee, . In her grounds of judgment, the learned High Court Judge stated:
"Walaupun terdapatnya isu-isu yang berkaitan dengan merit permohonan, Mahkamah mendapati bahawa isu penukaran merupakan polisi atau pengurusan prerogative yang tidak boleh disemak secara kehakiman ie dalam kes Pengarah Pelajaran Wilayah Persekutuan & Ors v. Loot .. Namun begitu, pemohon-pemohon sewajarnya boleh mengambil tindakan writ jika difikirkan wajar dan sesuai ke atas responden."
[6] The plaintiffs did not abide by the transfer orders and were dismissed after disciplinary proceeding against them were taken and they were found guilty of indiscipline and misconduct under the Public Officers (Conduct and Discipline) Regulations 1993. The fourth defendant terminated their employment effectively on 25 March 2019. On receiving the decision of the fourth defendant, the plaintiffs appealed to the Appeal Board.
[7] The plaintiffs also complained to SUHAKAM. SUHAKAM issued a preliminary report which appeared to support the plaintiffs complaints on the conduct of the defendants.
[8] The first defendant was sometime thereafter transferred to another school.
[9] In April 2020, the plaintiffs commenced this writ action to, inter-alia, challenge their dismissal. The plaintiffs plead that their employment has been wrongfully terminated by the Government only because they had exposed the first defendant's misconduct and wrongdoing. They allege that in dismissing them from public service, the defendants have, inter-alia, acted in breach of their statutory duties and have unlawfully conspired to injure the plaintiffs.
[10] On 24 August 2020, the Appeal Board wrote to the plaintiffs informing them of the dismissal of their appeal.
[11] On 21 October 2020, the defendants filed the present application to strike out the plaintiffs claim.
Parties' Submissions
[12] In support of their application to strike out the claim, the defendants contends that the instant action is frivolous and vexations and/or an abuse of the process as the plaintiffs complaints in relation to their dismissal involve public law complaints which should have been pursued by judicial review. They cite in support the decision of the Federal Court in Ahmad Jefri Bin Mohd Jahri @ Md Johari v
