Haidar Mohd Noor FCJ:

There are two appeals, civil appeal 01-4-2000(W) is by the Minister for Human Resources ("Minister") and civil appeal 02-17-2000(W) is by Berjaya Industrial Berhad ("company"). Thong Chin Yoong ("claimant") is the respondent in respect of both appeals.

As agreed by the parties, we directed the two appeals be heard together as in the Court of Appeal as they emanate from an order of the High Court dated 25 June 1996 and which order was affirmed by the Court of Appeal on 14 April 1999. The High Court by its order of 25 June 1996 issued an order of certiorarito quash the decision of the Minister made on 21 January 1995 under s. 20(3) of the Industrial Relations Act 1967("Act") declining to refer the representations of the claimant to the Industrial Court for an award as well as an order of mandamusdirecting the Minister to refer the representations to the Industrial Court.

In granting leave to appeal on 28 August 2000 the Federal Court, pursuant to r. 108(1)(c) the Rules of the Federal Court 1995, framed the following question for its determination:

Whether the employer can suspend an employee without loss of pay, benefits and perks pending the conclusion of the investigations and inquiries into his conduct notwithstanding that this is not stated in the terms of employment.

Mr. Lobo, counsel for the claimant gave notice that he intended to raise a preliminary objection, that is, the question as framed does not come within the meaning of s. 96(a) of the Courts of Judicature Act 1964and hence the appeal should be dismissed forthwith.

We indicated to the counsel for the parties to submit on the preliminary objection and the merits of the appeal at one go.

The facts of the case are essentially not disputed and can be shortly stated as follows.

The claimant joined the company on 16 August 1988 as a Hotel & Resort Development Manager. On 1 January 1994, the claimant's position was redesignated as Vice-President & General Manager (Hotel & Resorts) on A3 Grade. The terms and conditions of service remained unchanged.

On 30 March 1994 the company caused a notice to be issued to the claimant suspending him from his work with immediate effect until further notice in writing by the company. The suspension did not involve in the claimant's loss of emoluments, benefits and other perks until the investigation was completed.

On 21 April 1994 the claimant wrote to the company to inquire his position in the company since the date of his suspension. The claimant asked the company to inform him regarding his position before 28 April 1994 failing which he would have to reconsider his stand in the matter.

On 25 April 1994 the company responded by letter informing the claimant that the allegations of misconduct against him were still in progress and his suspension from work with full pay would continue until the investigation was completed. The company undertook to inform the claimant of the outcome of the investigation.

By letter dated 26 April 1994 to the company the claimant in referring to his letter dated 21 April 1994 and the company's reply dated 25 April 1994 alleged "It is clear to me nowthat the company did not have any material justifying my sudden suspension by its letter of 30 March 1994. Your prolonged "investigations" confirms this fact". The claimant at the same time gave an ultimatum to the company to lift the suspension and revert him to his job in the company on or before 4 May 1994 failing which he would have no alternative but to consider himself dismissed by the company with effect from that date.

The company responded videletter dated 3 May 1994 saying that the allegation of the claimant was totally misconceived and unfounded. The company further reiterated that it had received reports of alleged acts of gross misconduct committed by the claimant. It was further stated that the nature, gravity and the seriousness of the allegations were such as to warrant indepth and prolonged investigation by the com