Denis Ong JCA:

This is an appeal against the judgment of Kuching High Court II dated 7 July 1995 (reported in [1995] 3 MLJ 112 sub-nomine Re Sarjit Singh Khaira) wherein it allowed the motion of the respondent herein (SSK) for certiorari to issue and quash the decision dated 14 December 1988 of the appellant herein the (PSC) to dismiss SSK from the public service of the State of Sarawak with effect from 1 January 1989 and ordered costs against the PSC.

This appeal was part heard by us on 28 October 1997 and because of time constraint, we adjourned the hearing and directed submissions in writing from both sides and the reply, if any, by 9 December 1997. On 28 August 1998 we gave an oral decision in which we affirmed the judgment of Kuching High Court II and dismissed the appeal with costs and directed the deposit to be paid to SSK towards the account of taxed costs. We also dismissed the crossappeal of SSK. At the same time we intimated that the full reasons would follow and we do so now.

First the facts of the case and the background of this appeal. SSK joined the Sarawak Civil Service on 2 October 1961. Until mid April 1975, he was Examiner of Accounts in the Federal Audit Department Kuching. His basic salary was RM640 per month. Under the system of classification set out in para. 20 of Federal Service Circular No. 9 of 1971 (Suffian Circular) he belonged to the Clerical and Technical Group. On 10 April 1975 he accepted an offer of appointment by transfer to the post of senior accounting officer in the State Public Works Department (PWD) Simmanggang. Although expressly stipulated in the offer of appointment to be on permanent and pensionable terms the appointment was stated as probationary for one year from the date of assumption of duties and was liable to be terminated if it was not confirmed. Confirmation was dependent upon satisfactory performance and the production of a medical certificate. He assumed duties on 16 April 1975 in PWD Simmanggang where he remained until his transfer to PWD

Headquarters in Kuching sometime towards the end of 1977. In the absence of anything in the Appeal Record to indicate that such probationary appointment was terminated, it was assumed that his appointment was in fact confirmed. The post of senior accounting officer was on the salary scale C3 -5 (740 x 40 - 900/940 x 40-1,000/1150 x 50-1250) and in the executive and sub-professional group under the Suffian Circular.

On 6 June 1978 SSK opted for the new scheme under Federal Service Circular No. 2 of 1978 (the New Scheme) and converted to the salary code B3 (1405 x 60 - 1585). His new clean wage was RM1,456 - per month. The post of senior accounting officer PWD was upgraded from B3 to the salary Code A 22 in the New Scheme with effect from 11 January 1982 following a circular issued by the Public Services Tribunal but nothing was known of the new clean wage SSK should have received per month.

By a memorandum written in the Malay Language dated 25 April 1987 Haji Bujang Mohidin Jol, who signed for the State Secretary Sarawak, informed the Director of PWD and the Accountant General Sarawak of a decision made to transfer SSK. A certified English translation of the Memorandum reads as follows:

I am to inform you that a decision has been made to transfer Mr. Sarjit Singh Khaira to the State Treasury Limbang in exchange with Mr. Richard Leong Hee Cheong.

2. The transfer should take effect as soon as possible.

Besides that the officer concerned must be informed that the Government will not consider any appeal that might be made by the officer concerned or on his behalf.

3. I will be pleased if you can inform me of the progress on the matter in connection with the transfer.

On 28 April 1987 Kho Kwang Hui, who signed for the acting director PWD, wrote a letter (hereafter referred to as "the transfer order") marked "Confidential" to SSK through the acting senior accountant, PWD Headquarters in the following terms:

I am directed to c