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2021 MarsdenLR 3731
COURT OF APPEAL PUTRAJAYA
LEMBAGA TATATERTIB KUMPULAN SOKONGAN (NO 1) JABATAN PERLINDUNGAN HIDUPAN LIAR DAN TAMAN NEGARA & ORS....
[Civil Appeal No: W-01(A)-422-08/2019]
A disciplinary dismissal based on procedural bias is quashed if the complainant presides over the decision-making authority, violating direct regulations.
Headnote:(A) Public Officers (Conduct and Discipline) Regulations 1993 – Regulations 2(2), 24, and 38(g) – Disciplinary action – The Respondent was absent from duty for 57 days without leave, resulting in dismissal. The High Court quashed the dismissal citing bias due to improper composition of the disciplinary board. (Paras 1, 22, 28)
(B) Legitimate Expectation – The court found no reasonable expectation for approval of absence as protocol wasn't followed. (Paras 22, 23)
(C) Procedural Fairness – The court ruled that a Committee of Inquiry was not obligatory when evidence was sufficient. (Paras 25, 26)
(D) Bias – The court identified a legal error in having the complainant chair the disciplinary board, violating reg 2(2). (Para 28)
Facts of the case: The Respondent, employed as a Wildlife Assistant, was seconded for studies abroad but failed to report back due to ongoing education, leading to disciplinary action for absence. (Paras 4-10)
Findings of Court: The dismissal was quashed due to bias, yet substantive grounds for dismissal remained valid. (Para 64)
Issues: Whether a legitimate expectation for leave existed; if the disciplinary charges were properly conducted; and whether bias impacted the decision. (Paras 22, 24)
Ratio Decidendi: The court held that an institutional bias invalidated the disciplinary process, as outlined by the relevant regulations. (Para 28)
Result: The appeal by the Appellants is allowed; the previous order is set aside. (Para 64)
JUDGMENT
Introduction
[1] This is an appeal against the decision of the learned High Court Judge dated 10 July 2019. The learned Judge has held that the Respondent had violated reg 24 of the Public Officers (Conduct and Discipline) Regulations 1993 ("1993 Regulations"), which states that a public officer who fails to turn up for duty without prior leave would result in disciplinary action being taken against the officer. In the present case, the Respondent was absent from work for fifty-seven (57) days and at the conclusion of the disciplinary proceedings, the Respondent was dismissed from service by the 1st Appellant and her appeal was dismissed by the 2nd Appellant.
[2] However, the learned Judge then held that based on the Show Cause letter dated 12 October 2016 (exhibit "MR-19"), the composition of the 1st Appellant had violated reg 2(2) of the 1993 Regulations, in that the Complainant against the Respondent was the 4th Appellant, who had sat as the Chairman of the 1st Appellant which decided to dismiss the Respondent. The learned Judge then quashed the decision of the 1st Appellant due to biasness of the 4th Appellant.
[3] Having considered the Appeal Records and the submissions of the parties, both written and oral, we find that there are merits in the appeal and the appeal is allowed with costs.
The Salient Facts
[4] The Respondent had applied for and was appointed as a Grade G19 Wildlife Assistant in the Department of Wildlife and National Parks ('Department') on 29 May 2007. She was subsequently confirmed in her post with the Department.
[5] In February 2012, the Respondent was offered to be a student researcher for the Flatheaded Cat Conservation Programme ("FCC Programme") by the Copenhagen Zoo, Denmark. After a series of discussions with the Department, by a letter dated 27 August 2012, the Third Appellant, the Public Service Commission ("PSC"), approved the release for the Respondent's secondment for the FCC Programme. Under the FCC Programme, the Respondent was stationed at Krau Reserve Protection Unit, Sungai Dusun Reserve, Selangor and Universiti Sains Malaysia.
[6] Via a letter dated 10 September 2012, the Department had also approved the Appellant's secondment. Similarly, the Ministry of Natural Resources and Environment had granted the secondment for a period of two years (2012 to 2014).
[7] However, the Respondent had signed a Contract of Employment with the Copenhagen Zoo for a period of four (4) years, from 1 October 2012 to 30 September 2016.
[8] The Respondent states that under the terms of the FCC Programme, the Respondent was to obtain a Bachelor of Science (BSc) degree. Accordingly, on 1 September 2013, the Respondent had started her studies at Universiti Kebangsaan Malaysia ("UKM") to obtain the relevant degree. All the tuition fees will be covered by the employer, Copenhagen Zoo.
[9] When the two (2) year secondment term expired on 30 September 2013, the Respondent sought for another extension. The application for extension was approved by the Ministry vide a letter dated 11 February 2015 for a period of one (1) year, from 1 October 2014 to 30 September 2015. On the Respondent's further request, the period was extended for another year to 30 September 2016. Upon the completion of the secondment period, the Respondent was to report back to her Department for official duties. The Respondent was supposed to report back for duties on 3 October 2016.
[10] However, the Respondent's studies at UKM has not been completed, and the Respondent was to complete another two semesters. Hence, vide a letter dated 21 September 2016 (exhibit "MR-15") to the Department, the Respondent has applied for study leave with half salary starting from 1 March 2016 to 30 January 2018 to complete her studies.
[11] In relation to the Respondent's study leave application, the Department has provided an explanation on the study leave application process and the Respondent had been asked to return to work while waiting for the
