Abdul Kadir Sulaiman J:

This is an application by Lau Yau Chai, the former managing director of the respondent company for an order of certiorari to quash the Industrial Court Award No 374 of 1994 (hereinafter referred to as 'the said award') which held that he was not a workman within the definition contained in the Industrial Relations Act 1967 (hereinafter referred to as 'the Act'), and for an order of mandamus directing another division of the Industrial Court to rehear the reference by the Minister under s 20 of the Act. The said award came about consequent upon a preliminary objection raised by the respondent before the Industrial Court that the applicant is not a workman under the Act.

The reference by the Minister to the Industrial Court arose out of the alleged dismissal of the applicant by the respondent which according to the applicant took place on 14 May 1992.

The applicant joined the respondent company in 1977 as a corporate assistant.

However, in Form 45 to the Companies Act 1965 dated 6 May 1980 exhibited at p 84 of the record, the applicant expressed his consent to act as the company director of the respondent.

Thus by that time he was a director of the respondent.

Then, with effect from 1 January 1983 the respondent appointed him as its deputy managing director and in July 1983 he was appointed as the managing director

This is evidenced by a letter from the respondent to the applicant exhibited at p 20 of the record.

Attached to the said letter is the job description of the managing director

Under general description of job, it is stated therein that the managing director is the chief executive officer of the respondent.

By art 85 of the articles of association of the respondent, the managing director shall ipso facto and immediately cease to be such if he ceases to hold the office of director for any cause.

By art 93, "until otherwise determined by the company in general meeting all the directors shall retire from office at every annual general meeting of the company". But a retiring director shall be eligible for re-election and shall act as a director throughout the meeting at which he retires

On 12 May 1992 the respondent company held its AGM. At this meeting the applicant and other directors of the respondent in pursuance to art 93 offered themselves for re-election.

Unfortunately, the applicant was not re-elected by the AGM as a director

Therefore, by operation of art 85 the applicant ceased to be the respondent's managing director ipso facto and immediately.

Now that there was no person holding the position of a managing director in the respondent's company, the newly elected board of directors of the respondent in the evening of the same day held a meeting and resolved to abolish altogether the position of a managing director in the respondent company.

Now that the post of managing director was abolished by the new board and the applicant was no longer a managing director owing to his failure to be reappointed as a director, there is to be someone to be designated as the chief executive officer of the company because by the job description of a managing director the holder was to be the chief executive officer of the company.

To this end the new board of directors of the respondent at the same meeting held on 12 May 1992 also resolved that one of them be appointed as executive deputy chairman/chief executive officer of the respondent company.

Consequent upon the resolutions of the new board of directors, the chairman of the respondent wrote a letter to the applicant on the same day as follows:-

Dear Mr Lau,

Re: Abolishment Of The Post Of Managing Director

This is to inform you that the board of directors at its meeting on 12 May 1992 has decided to abolish the post of managing director

At the annual general meeting held on the same day, you have not been elected a director of Johore Mining And Stevedoring Co Sdn. Bhd By virtue of this you cease to be the managing director of the company with immediate effect. 2. Yo