JUDGMENT

1. This is an application dated 28th November, 1997 (encl. 32) of the plaintiff to cross-examine Hj. Zakaria Nyumay on his affidavit affirmed on 23rd October, 1997 in support of the application to strike out the 4th defendant from the Suit. The application was made by the 1st, 2nd, 3rd and 5th defendant. Hj. Zakaria is the Director of Human Relation Management Department of the State Secretary. Following the implementation of the SSB (Skim Saraan Baru), the State Secretary has set up at least 15 panels on Coordination of Performance and Salary Progression at various levels i.e. ministerial, divisional, departmental and local authority.

2. I am not prepared to hold that the application to cross-examine Hj. Zakaria as being without just cause or motivated by a desire to delay the proceedings or without bona fide or sham or vexatious.

3. To allow or not to allow the plaintiff's application to cross-examine Hj. Zakaria is a matter of court's discretion, based on judicial principles. I am dealing with the merits of the application under O.32 of the Rules of the High Court, 1980 and in order to enable me to exercise my discretion with regard to the application, it is necessary for me to see how the proposed cross-examination would be relevant to the issue of the application. In LEISURE & ALLIED INDUSTRIES PTE LTD v UDARIA SDN BHD (1980) 1 MLJ 189 , Salleh Abbas FCJ (as he then was) at page 190 said:

"It is really a matter of common sense and an elementary legal principle that a party who swears on affidavit must be prepared to stand up to it by cross-examination unless the application to cross-examine him is without just cause, [2] vexatious or motivated by a desire to delay the proceedings (Allen v Allen (1894) p. 239)."

See also LEE SEW KAI v MENTERI DALAM NEGERI MALAYSIA & ORS (1990) 1 MLJ 42 .

4. Under Article 132(1)(g) of the Federal Constitution, public service includes the public service of each State. The Federal Service Circular No. 4/1992 regulates the services and conduct of the public service, and in a State, the State Government may adopt the Service Circular No. 4/1992, with or without modification, and it binds the State once it is so accepted.

5. Under the State Constitution, the executive power of the State is exercised by the Chief Minister or Menteri Besar. The office of the Chief Minister or of the Menteri Besar, as the case may be, is backed up by a body of civil servants, who are members of the public service. This body of civil servants is headed by the State Secretary, who is answerable to the office of the Chief Minister. In practice, all administrative actions are carried out in the name or on behalf or for the State Secretary. A panel or tribunal, by whatever name called, instituted by the State Government is amenable to the office of the State Secretary under the State Constitution. In the instant case, it is not correct to say that a panel, Panel Penyelaras Penilaian Prestasi & Pergerakan Gaji (or Panel on the Coordination of Performance Appraisal & Salary Progression) set up for the purpose of the implementation of the Service Circular No. 4/1992, is absolutely independent of the the State Secretary.

6. The brief facts of the case are as follows:-

6.1 The plaintiff was appointed on 6th February, 1978 as a Water Engineer with the Public Works Department, on grade A18. On 1st February, 1993 he was promoted and transferred to Kuching Rural District Council (later known as Padawan [3] Municipal Council) on grade A11. Under the New Remuneration Scheme the post was converted to J2.

7. Under of Service Circular No. 4/92, the plaintiff as a Council Engineer, was informed of a static salary for the years of 1993, 1994 and 1995. The head of the department was the 1st defendant, who holds grade N2 which grade is equivalent to the plaintiff's J2 grade. A panel that reviewed the plaintiff's grievance was conducted by the 2nd and 3rd defendants, who are invariably of no higher grade than the plaintiff.

8. On