Termination based on absence without leave is unlawful if the employee was effectively suspended, highlighting required procedural compliance.

[1] The Applicant filed a judicial review application against the decision of the Respondents.

[2] In gist the Applicant sought for an order of certiorari to quash the decision of the Chairman of the Disciplinary Board of Education Service for the Support Group (No 1), Ministry of Education Malaysia dated 16 January 2014 (i) to forfeit emoluments for the period of Applicant's absence from work and (ii) to dismiss the Applicant from the public service effective from 27 December 2013 and subsequent to that against the decision made by the Respondent in affirming the Disciplinary Board's decision and dismissed the Applicant's appeal.

The Background Facts

[3] The relevant background facts are as follows.

[4] The Applicant was a teacher and was teaching at Sekolah Kebangsaan La Salle (2) Brickfields, Kuala Lumpur ("the said school").

[5] On 22 April 2005, the Applicant was found guilty under s 417 of the Penal Code and was sentenced for imprisonment of six (6) months and the Applicant appealed against the decision.

[6] On 23 April 2005 (Saturday), the principal of the school where the Applicant worked, Encik Sopian Bin Haji Mokhtar ("the said principal"), found out about his conviction vide newspaper and thereafter contacted the Applicant and informed him not to come to work since the suspension of the Applicant would take effect immediately upon his conviction.

[7] Three days later (26 April 2005), the principal wrote a letter to Unit Gaji, Kementerian Pelajaran Malaysia instructed them to stop the payment of Applicant's salary and allowance.

[8] It is not a disputed fact that the Applicant did not receive any salary since April 2005.

[9] On 28 July 2006 the Applicant's appeal against the conviction was allowed and the re-trial was ordered by the High Court.

[10] On 17 September 2007, the same principal again wrote another letter to Lembaga Tatatertib Perkhidmatan Pendidikan recommending for the suspension or termination of service of the Applicant for absenting without leave/without permission.

[11] On 7 September 2009, the Applicant was discharged not amounting to acquittal by the Court and on 9 October 2009 the Court sent a letter confirming the same to the Respondents.

[12] On 9 October 2009, the Applicant had directly contacted the principal of the said school which at that time is Encik Sarjit Singh A/L Sarban Singh, informing him the latest outcome of his conviction.

[13] Consequently on 29 October 2009, the said school sent a letter to the Applicant to come back to work on immediate effect which the Applicant received the letter on 12 November 2009 and he has started his duty on 16 November 2009.

[14] However, later a show cause letter was given by the said school to the Applicant for him to explain why he has absent from his duty from 25 April 2005 until 13 November 2009.

[15] The Applicant relied that he was suspended since 25 April 2005 until 13 November 2009 and therefore he cannot come to work. In support of this contention, the Applicant relied on the following facts:

i) He did not receive any salary or allowance since April 2005;

ii) A direct instruction given by the Principal to him which is the higher authority at the said school; and

iii) There was no warning letter given to him in that four (4) years he did not come to work to show that he was absent without leave.

[16] Later, the Applicant received a notice from the Kementerian Pendidikan Malaysia dated 26 September 2013 on Disciplinary action under "Pe