Mohd Ghazali Yusoff JCA:

[1] The appellant, who was an employee of the respondent, a locally incorporated company, considered that he was dismissed without just cause or excuse and hence made representations in writing to the Director General for Industrial Relations pursuant to the provisions of s. 20 of the Industrial Relations Act 1967 ("the Act") to be reinstated to his former employment. The representations were subsequently referred to the Industrial Court for an award.

[2] On 30 August 2001, the Industrial Court concluded that the appellant's dismissal was "not only without just cause or excuse, it is also unreasonable, not in good conscience and excessively harsh". The Industrial Court also concluded that since the appellant was now gainfully employed "it would be better that no order of reinstatement is made". The Industrial Court consequently ordered the respondent to make monetary compensation to the appellant consisting of back wages and compensation in lieu of reinstatement.

[3] The respondent, upon leave being granted by the High Court, applied for, inter alia, the following reliefs:

(i) an order of certiorari to quash the award of the Industrial Court dated 30 August 2001; and

(ii) that all necessary and appropriate directions be made.

[4] On 17 November 2003, the learned judge of the High Court allowed the respondent's application with costs and quashed the award and ordered that the matter be remitted to the Industrial Court "to be dealt with accordingly before a different panel". The appellant henceforth appealed to this court.

[5] The facts showed that the respondent manufactured household products such as refrigerators, air conditioners, electric fans and rice cookers. In its Paint Shop section, the employees are involved, among other things, in painting the components of the household products manufactured. For purposes of mixing the paint for painting and also for cleaning spraying equipment, the respondent uses a thinner which is kept in its store. It is the respondent's company work rule that workers are not allowed to take away any property out of the respondent's premises without proper authorization from the management.

[6] The appellant was employed by the respondent since February 1973. At the time of his dismissal on 7 October 1999, the appellant was holding the position of an Assistant Line Captain in the Paint Shop section. His last drawn salary was RM1,439. On 22 September 1999 at about 5.05pm, the appellant, at the end of his shift, was found at the exit point to the respondent's premises carrying out a 1.5 litre bottle containing some liquid by the respondent's security guard. When questioned as to the contents of the said bottle, the appellant replied that it was battery water. Being dissatisfied with the appellant's answer, the said security guard sought the co-operation of another factory worker as to the contents of the bottle in the appellant's possession. The said factory worker confirmed that the bottle contained "thinner". The security guard then brought the appellant to see the respondent's Human Resources Manager along with the other factory worker.

[7] By letter dated 23 September 1999 the respondent wrote to the appellant as follows:

Dear Nehru,

It has been reported that on 22.9.99 between the hours of 17.05 to 17.30 you were alleged to have committed the following.

That you had deliberately and knowingly had taken out 1.5 litre of thinner which can be used for paint mixing without authorisation or prior approval, instead for your personal gains and not for any justifiable reason whereby you were caught by the security guard at the exit point.

In view of the seriousness of the misconduct, the Company has decided to suspend you pending inquiry on half pay for the duration of 14 days effective 24.9.99. If the result of the inquiry does not establish a case against you, the Company shall forthwith restore you to the full amount of wages so withheld in accordance with E/A 195