JUDGMENT

Abdul Hamid Omar FJ:

The appellant S. Mariappan employed in the permanent pensionable service of the Government of Malaysia as a clerical officer attached to Telecoms Department was dismissed from service by the Public Services Commission (PSC) on 7 August 1972 on the ground that he failed to comply with Treasury Instruction 78(a) which requires daily collection exceeding RM500 (for currency notes and coins) and RM2,000 (for cheques and postal orders) in addition to cash, to be deposited within a prescribed time in a local bank. The PSC found as a fact that this failure to comply was in regard to a sum of RM5,076.63 from a total collection of RM16,998.04 for period between 27 September 1969 to 2 January 1970.

These facts are not challenged before us on appeal. The sole ground raised upon which the appellant relies revolves on a point of law not raised in the lower Court as follows:

3. The Learned Trial Judge should have held that the Disciplinary Authority for the purpose of the appellant category was the Public Services Disciplinary Board and not the Public Services Commission and should have held that the exercise of power of dismissal by the Public Services Commission was wrong and that the purported dismissal was therefore void and of no effect.

Mr. Karpal Singh Counsel for the appellant has urged the Court to exercise its discretion to allow this point not raised before to be argued as it is vital to the appellant's case.

The principles on which the Court of Appeal will permit a point of law not raised in the Court below to be raised on appeal can be found in a number of authorities. As a starting point we refer to a passage in Mallal's Supreme Court Practice at p. 917 under the heading "Points not taken in Court below." The principle that emerges from the authorities, fundamentally, is that the Court of Appeal will not consider an issue which has not been raised before, particularly on a point not argued in the Court below and which did not appear specifically in the pleadings. The propriety of allowing such point to be raised is also doubted where it is highly technical and devoid of merit. Cases decided after 1962 confirm that a ground of appeal not pleaded in the lower Court is not open to the appellant (Innaya v. LombardAcceptance (M) Ltd. [1963] MLJ 30). In a Privy Council case of United Marketing Co. v. Hasham Kara [1961] it is stated that point not taken in the lower Court will not be allowed to be argued unless it is satisfied that the evidence on which they are asked to decide establishes beyond doubt that the facts, if fully investigated, would support the new plea. It is also stated that even if the facts are beyond dispute they would not readily allow a fresh point of law to be argued without the benefit of the judgment of the Judges in the Court below. (See also Rengasamy Pillai V. Comptroller Of Income Tax [1970] .

A further authority on the principle followed by an appellate Court in dealing with a point not taken at the trial may be found in Tan Tek Yan v. Samuel [1964] where it is held that a point, not taken at the trial, and presented for the first time in the appellate Court ought to be most jealously scrutinised and an appellate Court ought only to decide in favour of the appelant on a ground there put forward for the first time, if it be satisfied beyond any doubt, first, that it had before it all the facts bearing upon the new contention as completely as would have been the case if the controversy had arisen at the trial. (See also Lim Chui Lai v. Zero Limited [1964]. (See also The"Tasmania" [1890] 15 AC 227).

In Gulwant Singh v. Abdul Khalik [1962] Thomson LP delivering the judgment of the Court referred to The "Tasmania" and went on to say that:

The question of whether effect should be given to a point not raised at the trial and which is raised for the first time in the appellate Court is one for discretion and the principles on which that discretion will be exercised have been set out by Lord W