Mohd Saari Yusoff J:

In a writ, the plaintiff applies for the following:

(a) a declaration that the purported dismissal of the plaintiff as a Tukang K2 Tingkatan Kanan attached with the Malayan Railway Administration, Kuala Lumpur is null and void and of no effect and that the plaintiff is still a Tukang K2 Tingkatan Kanan entitled to all the salaries and benefits due to him;

(b) an inquiry to determine the salaries, emoluments and other benefits due to the plaintiff;

(c) damages;

(d) interest on the adjudged sum from date of judgment to date of realisation

(e) costs; and

(f) any further or other relief deemed fit and proper by Honourable Court by the Honourable Court.

The uncontroverted facts is that on 18 October 1988 at 3.30am, there was a theft of railway property namely intermediate member 40 tonnes at the workshop in Sentul near the railway station. A suspect named R Chandravathanam was arrested at the scene of the incident. The other suspect was the plaintiff. He was arrested by the police at his house on the same day at 9.30am.

From the records, it seems that a committee was set up to investigate into the alleged offence of theft. The upshot of the investigation was that a report with a recommendation (hereinafter referred to as "the said report") was submitted to the disciplinary board ("the first defendant").

At all material times, the plaintiff was employed as a Tukang K2 by third defendant. By letter dated 29 March 1990, the plaintiff was informed that the first defendant had decided to take disciplinary action against the plaintiff under O. 4(2) (f) and O. 4(2)(g) Public Officers (conduct and discipline) (Cap. D) general order, 1980 with a view to dismissal or demotion in rank pursuant to O. 26 of the same general order.

Subsequently, the plaintiff was informed that the first defendant, after taking into account the plaintiff's representation and other related information, had decided that the plaintiff be dismissed with effect from 10 November 1990. The plaintiff appealed to the first defendant but it was dismissed.

The issue for determination is whether there is compliance with the rules of natural justice by the first defendant.

At the trial, En Karpal Singh, learned counsel for the plaintiff, did not adduce oral evidence but relied on agreed facts and agreed documents. The defence called SD1, secretary of the first defendant, to give evidence, who deposed that he attended the meeting convened by disciplinary board on 7 November 1990. At the meeting, the disciplinary board deliberated on the said report together with the plaintiff's representations as per letter (p. 23 of B).

Under cross examination, SD1 admitted that the plaintiff was not supplied with the said report at any time.

In Shamsiah bte Ahmad Sham v. Public Services Commission, Malaysia & Anor [1991] 1 CLJ 23 [1990] 3 MLJ 364, the facts in that case are that the appellant, a book-binder with the Government Printing Department, was dismissed by PSC after she was found guilty of negligence and dereliction of duty. PSC, in arriving at its decision to dismiss the appellant from service, had taken into account extraneous matters, namely, the appellant's records of past conducts. In this case, the appellant was not given an opportunity to explain, contradict or rebut her record of service. Held, her dismissal was null and void.

In Re Godden [1971] 3 All ER 20, Mr Godden, who was then the Kent Police Officer, had made accusations against his superior officers. The Kent Police Authority proceeded (under reg. 70(2) of the Police Pensions Regulations 1971) to refer for decision to a qualified medical practitioner on the ground that the inspector was suffering from a mental disorder of the paranoid type and thereby permanently disabled. It was held inter alia that the decision of the selected medical practitioner on the question referred to him under reg. 70(2) was a decision of a judicial character and must conform to the rules of natur