Zaki Tun Azmi PCA:

[1] Leave was granted to refer to this court the following four questions:

(i) Whether the court could place itself in the shoes of the disciplinary authority acting under the general orders in determining whether a particular procedure is fair or not.

(ii) In considering whether or not disciplinary proceedings under the general orders were procedurally fair, must regard be given to the length of time taken for initiating the disciplinary proceedings, the nature of the charge and the reasons for the length of time taken.

(iii) Whether it is the court, and not the disciplinary authority to decide whether the officer had, in his written representation, exculpated himself from the charges preferred against him.

(iv) Whether the disciplinary authority acting under the general orders ought to have granted the respondent an opportunity to be heard orally notwithstanding that he did not ask for an oral hearing.

[2] At the outset, perhaps I should mention these grounds of judgment took longer to be prepared since parties requested time to provide supplementary written submissions the last of which we did not receive until recently.

[3] This appeal relates to the dismissal of one M. Senthivelu a/l R. Marimuthu ("deceased"), a clerk in the Postal Department by the 1st appellant as the disciplinary authority under the general orders. He filed, in the High Court at Kuala Lumpur, an action by way of a writ against the appellants for wrongful dismissal. This action was dismissed with costs. He appealed to the Court of Appeal. The Court of Appeal allowed his appeal with costs on 11 July 2005 mainly for reason of delay in the disciplinary authority commencing and completing the disciplinary proceedings. He died after that decision was delivered and his daughter was substituted as respondent (at the Court of Appeal, the respondent was cited as "M Senthivelu a/l R Marimuthu) in this present appeal. The appellants are the Public Services Commission Malaysia and the Government of Malaysia.

[4] The deceased being a government servant, the disciplinary action against him is governed by the Public Officers (Conduct & Discipline) General Orders (Chapter D) 1980.

[5] The facts of this case went to as far back as 18 October 1984 when disciplinary proceedings were commenced against the deceased on a disciplinary charge of unlawfully withdrawing monies from the accounts of 16 account holders with the Pejabat Pos Sitiawan, Perak. According to the charge, the deceased had withdrawn from these 16 accounts a total of RM6,050 between 3 January 1977 to 13 May 1977. The disciplinary proceedings were only commenced against him seven (7) years after the alleged offences were committed. The full charge is reproduced below:

Bahawa tuan, Santhivelu a/l R. Marimuthu yang bertugas sebagai Pegawai Kerani Pos, Tingkatan Biasa, Pejabat Pos Sitiawan, Perak telah mengeluarkan wang sejumlah $6,050 (Enam Ribu Lima Puluh Ringgit) daripada akaun penyimpan-penyimpan Bank Simpanan Nasional pada tarikh-tarikh dan jumlah-jumlah seperti yang dinyatakan di Lampiran 'A'. Tuan telah melakukan perbuatan tersebut dengan menyediakan borang-borang pengeluaran wang dari 16 Buku Kira-Kira Bank Simpanan Nasional penyimpan-penyimpan itu secara palsu dan mengemukakannya kepada sama ada Puan T. Renggyah, Pegawai Kerani Pos, Pejabat Pos Sitiawan atau Encik Othman bin Abdullah, Pegawai Kerani Pos, Pejabat Pos Sitiawan supaya mereka mengeluarkan wang di bawah kawalan mereka setelah tuan meyakinkan mereka bahawa catatan telahpun tuan buat sendiri di dalam Buku Kira-Kira penyimpan, tetapi sebenarnya catatan tidak pernah dibuat dan Buku Kira-Kira Simpanan penyimpan tersebut tidak pernah ada pada tangan tuan. Dengan itu tuan telah berkelakuan tidak jujur dan tidak bertanggungjawab bertentangan dengan Perintah Am 3(g) dan 3(h), Bab 'D' 1969.

[6] Almost immediately after receiving the charge, the deceased made his representations to the 1st appellant by way of a letter dated