Eusoffe Abdoolcader SCJ:

This appeal centres primarily on the determination of the question of an error of law amounting to excess or lack of or defect in jurisdiction sufficient to preclude the postulate of a statutory privative clause prohibiting certiorari to quash an industrial award.

Lim Tong Sun (`Lim') was at the time of his dismissal a Class II Officer attached to the Cameron Highlands Branch of the appellant Bank. A domestic inquiry was held in respect of charges against him that he had issued two cheques but closed his account with the Bank before they could be presented, and then issued three more cheques after closing his account, and of impersonating the Branch Manager of the Bank and borrowing money from a customer of the Bank at the latter's house, and further of breach of duty in failing to abide by instructions requiring him to stay at his place of residence in Cameron Highlands during normal working hours whilst under suspension. The panel of inquiry found Lim guilty on all the charges except that of impersonation and as a result he was dismissed on the basis that he had abused his position and misplaced the trust put in him as an officer of the Bank. The respondent, a trade union of which Lim was a member, took issue on his behalf in the matter of his dismissal, and as a result a trade dispute ensued which was referred by the Minister of Labour and Manpower to the Industrial Court under the provisions of s. 26(2) of the Industrial Relations Act 1967.

The Industrial Court held the dismissal of Lim to be unduly harsh and therefore without just cause or excuse. It did not however think it appropriate to direct reinstatement and accordingly awarded to Lim as an alternative remedy a sum of RM61,056 for salary due as at the last date of hearing before the Industrial Court, namely, 18 October 1986, compensation in lieu of reinstatement and bonus for 1984 and 1985, with a direction for the appropriate deduction and payment of his Employees Provident Fund contributions up to 18 October 1986. The Bank then applied to the High Court for certiorari to quash the award but Harun Hashim J holding that the Industrial Court acted well within its jurisdiction dismissed the application with costs.

It would be appropriate to initially consider the law in this regard and then relate its application to the facts of the matter before us. Section 33B(1) of the Industrial Relations Act enacts a privative clause precluding certiorari in respect of any award, decision or order of the Industrial Court under the Act. I held in Mak Sik Kwong v. Minister of Home Affairs, Malaysia (No. 2) [1968] 2 MLJ 175 (at p. 179) that a privative clause of this nature is not operative in the face of a jurisdictional defect or fraud and has no effect at all as regards jurisdictional review, and reaffirmed this in Chan Siew Kim v. Woi Fung Sheng Tim Medical Store & Anor [1978] 1 MLJ 144 (at p. 146); both these cases were cited with approval by the Privy Council in South East Asia Fire Bricks Sdn. Bhd. v. Non-Metallic Mineral Products Manufacturing Employees Union & Ors. [1981] AC 363 (at pp. 372-373).

I discussed and analysed at some length the question of what amounts to a jurisdictional defect in Mak Sik Kwong (No. 2) (at pp. 177-179) and in Chan Siew Kim where I said (at p. 146):

The question of whether or not there is a manifest defect of jurisdiction will be one for consideration and determination on the particular circumstances of each case as it arises in the light of the principles discussed and postulated in my judgment in the case referred to [Mak Sik Kwong (No. 2)]...

For a jurisdictional defect, it is not enough to establish error of law. It must be shown that that error goes to jurisdiction, power or validity.

The question that must now be confronted is whether error as to non-jurisdictional facts can in itself amount to legal error. The starting point must necessarily be Lord Sumner's classic judgment in Rex v. Nat Bell Liquors Lt