Raus Sharif J:

[1] This is an application by the applicant for an order of certiorari to quash part of the award in respect of the remedies awarded by the Industrial Court in Award No. 442 of 2003, handed down on 28 June 2003.

[2] The facts leading to this application by the applicant may be summarised as follows.

[3] The respondent commenced employment with the applicant as its Human Resources Manager on 1 July 1995. Arising from several allegations of misconduct, the respondent was dismissed from the service of the applicant on 5 March 1998. The respondent challenged his dismissal under s. 20 of the Industrial Relation Act 1967 ("the Act"). The matter was referred to the Industrial Court.

[4] On 28 June 2003, the Industrial Court held that the dismissal of the respondent was without just cause or excuse and ordered the respondent be reinstated by the applicant without any loss in salary, promotion prospects and other benefits, monetary or otherwise. It was also ordered that the respondent be paid backwages and all other monetary benefits for the period from the date of his dismissal to the date of reinstatement.

[5] The applicant in this application is seeking to impugn only two parts of the award namely:

(a) part of the award on backwages; and

(b) part of the award on the reinstatement.

(a) Backwages

[6] It is the submission of the applicant that the award on backwages should be quashed and remitted back to the Industrial Court for reassessment because:

(i) The Industrial Court erred in law in failing to take into account the evidence that the respondent was gainfully employed after his dismissal.

(ii) The Industrial Court erred in law in failing to limit the backwages to 24 months when it failed to appreciate that the delay in the hearing of the matter was not solely caused by the appellant.

(i) Was The Respondent Gainfully Employed After His Dismissal

[7] It was clearly established in evidence that the respondent had obtained employment in another company for a period of time after his dismissal and was in receipt of income. The respondent in his evidence before the Industrial Court, during cross examination testified as follows:

After my dismissal by the Company in March 1998, I did obtain employment in Olympia Holdings Bhd as Group Human Resources Manager, from September 1998 to August 2000. I started at RM8,500.00 and when I left, I was earning RM9,000.00 per month.

[8] It is contended by the applicant that despite the above evidence, the Industrial Court proceeded to award full backwages to the respondent without making any adjustment to the same as if the respondent was never employed after his dismissal. According to the appellant the Industrial Court's award on backwages was therefore flawed. In support of its contention the applicant cited the Court of Appeal's decision in Koperasi Serbaguna Sanya Bhd, Sabah v. Dr. James Alfred, Sabah & Anor [2000] 3 CLJ 758 and the Federal Court's decision in Dr. James Alfred, Sabah & Anor v. Koperasi Serbaguna Sanya Bhd, Sabah [2001] 3 CLJ 541 (Dr. James Alfred's case).

[9] Learned counsel for the respondent in his submission conceded that the Industrial Court was in error when failing to take into account that the respondent was gainfully employed after his dismissal. The concession by the learned counsel is commendable, as the law on this matter is well settled that an adjustment has to be made to an award of backwages when the workman has found other employment.

[10] The Court of Appeal in Dr. James Alfred's case stated it as follows:

What comes across quite clearly is that an adjustment should be made to an award of backwages where the workman has found other employment. The appellant has complained that no such adjustment was made by the Industrial Court in the present instance. I think the complaint is justified. It is a common ground that in August 1998, the respondent found himself other employment in Peninsular Malaysia. Yet the Industrial Court did not take i