Abdul Malek Ahmad PCA:

Except for a handful of cases, it is not really the norm to publish judgments pertaining to leave to appeal but public interest necessitates the writing of one for this particular application.

The applicant rests her case upon art. 8 of the Federal Constitution wherein cl. (1) thereof states that all persons are equal before the law and entitled to the equal protection of the law.

The facts of her case were straightforward. She joined the first respondent as a Grade B flight stewardess and she was bound by the terms and conditions of a collective agreement dated 3 May 1988 which came into operation on

1 September 1987 for a period of three years. The said collective agreement was recognized by the Industrial Court and registered as " COG 81/88 " . It must be emphasized at this juncture that this collective agreement was binding on all stewardesses.

This point is highly relevant because cl. (2) of art. 8 of the Federal Constitution, which she is relying on, is there to ensure that there is no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender. It must be pointed out that " gender " was only added in subsequently and came into force only on 28 September 2001.

Paragraph (3) of cl. 2 of the First Schedule to the collective agreement requires all stewardesses in the applicant' s category to resign on becoming pregnant and in the event she fails to resign, the first respondent shall have the right to terminate her services. The applicant became pregnant but she refused to resign. Acting upon the relevant provision of the collective agreement, the first respondent terminated her services. This led to her commencing proceedings at the High Court seeking a declaration, inter alia, that cl. 2, which deals with the notice of termination of employment, cl. 14, which sets out the provisions for maternity leave for special cabin crew which includes senior chief stewardesses and chief stewardesses, and cl. 19, which provides for the retirement age differently for different categories of female employees, of the collective agreement contravened art. 8 of the Federal Constitution rendering the collective agreement void. The applicant also prayed that her termination from service was void for contravening the Industrial Relations Act 1967, in particular s. 14(3) thereof, and the Employment Act 1955.

It must be noted that the applicant was employed by the first respondent on 14 October 1980 as a Grade B flight stewardess and at the time of her termination, the applicant was still in that same category.

On 29 February 1996, the High Court dismissed the application. She appealed but the Court of Appeal on 7 April 2003 came to the same conclusion and dismissed her appeal with costs.

The applicant applied for leave to appeal to the Federal Court against the decision of the Court of Appeal. We heard the applicant' s application for leave to appeal to this Court on 10 August 2004. We reserved our decision as we needed more time to consider the merits and to obtain the grounds of judgment of the Court of Appeal which were not then available. These were made available sometime in October 2004 and we delivered our decision on 11 March 2005.

An appeal to the Federal Court is not automatic and all litigants in civil cases who wish to do so must first obtain leave from the Federal Court. In deciding whether leave to appeal is to be granted, the applicant must satisfy s. 96(a) of the Courts of Judicature Act 1964 (hereinafter the " CJA " ). In Datuk Syed Kechik bin Syed Mohamed & Anor v. The Board of Trustees of the Sabah Foundation & Ors and Another Application [1999] 1 CLJ 325, it was held that leave will not be granted unless both of the following criteria are satisfied by an intending appellant:

(a) the judgment of the Court of Appeal has raised a point of general principle which the Federal Court has not previously decided or a point of importance upon which further ar