Abdul Hamid Mohamad JCA:

[1] The first respondent was a clerk at the bill payment counter of the appellant (Telekom Malaysia Kawasan Utara). He was dismissed by the appellant. The Industrial Court upheld the dismissal. The first respondent filed an originating motion in the High Court for an order of certiorari to quash the award of the Industrial Court. The High Court granted the order The appellant appealed to this Court. We allowed the appeal with costs. Here are the grounds for allowing the appeal.

[2] Briefly, the first respondent was alleged to have received a total of RM5,168.77 in cash from customers who came to settle their bills, issued receipts showing that they were paid by cheques belonging to Natkunasingam for the same amount which cheques were dishonoured thus causing a loss to the appellant. He was "charged" for an "offence" under Polisi Syarikat MPSTM-43-Kesalahan Berat Perkara 2 iaitu "Mencuri atau menipu termasuk cuba mencuri atau cuba menipu dalam keadaan yang berkaitan dengan harta benda Syarikat dan boleh diambil tindakan mengikut art 64 Perjanjian Bersama 11/1992."

[4] It appears that no Court in this country higher than the High Court has had the occasion to consider this point. There appears to be only two High Court judgments in which the standard of proof is mentioned. The first is the case of Jennico Associates Sdn Bhd v. Lillian Therera De Costa & Anor, [1998] 3 CLJ 583. In that case Azmel Maamor J says, at p 590:

The only difference between this case and a normal criminal sexual charge is that in this case the standard of proof required for the claimant to prove is on a balance of probabilities whereas in a criminal charge the standard of proof is on a beyond reasonable doubt. But the onus of proof does not shift. The onus shall always be on the claimant to prove such allegations on a balance of probabilities relying on her own evidence and other witnesses and documents.

[5] The learned judge in the present case did not refer to this case in his judgment. It may well be that it was not brought to his attention.

[6] The other case is the case of Sabah Plantation Industry Employer's Union v. Sama Subur Sdn Bhd., Tawau & Anor, [1995] 2 MLJ 378. In that case an employee was dismissed for participating in an illegal strike, and that as a result, she was absent from work for three days without obtaining prior permission. The Industrial Court confirmed the dismissal. An application was made to the High Court for an order of certiorari to quash the award on grounds which do not concern us here. The learned judge quashed the award and, in passing, made a remark:

It was also clear that the findings of guilt for those alleged crimes were not on the standard of proof of beyond reasonable doubt, but on the balance of probabilities.

[7] In other words the learned judge was also of the view that the standard of proof should be the beyond reasonable doubt test.

[8] This case was referred to by the learned judge in his judgment.

[9] The learned judge also relied on the Federal Court judgment in Ang Hiok Seng v. Y