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2010 MarsdenLR 645
HIGH COURT SABAH & SARAWAK, KUCHING
ISMANDI LABOT – Appellant
Versus
SURUHANJAYA PERKHIDMATABN AWAM NEGERI SARAWAK & ORS – Respondent
[Judicial Review No: JR-4-2010-I]
Dismissal upheld for absence without permission; however, total salary stoppage violated General Orders, affirming partial entitlement to salary.
Headnote:(A) State Service General Orders 1996 - Orders 153(4)(j) and 171(1) - Certiorari application to quash dismissal - Applicant dismissed for absence without permission contrary to General Orders; contended wrongful deduction of salaries and breach of natural justice - Court upheld absence but ordered salary for October and partial for November 2007. (Paras 1, 8, 25)
(B) Procedural fairness - Court emphasized right to a hearing and cross-examination, affirming that written representation suffices for natural justice. (Paras 12-20)
(C) Delay in procedure - Noted that delay does not constitute unfairness without evidence of prejudice to the applicant. (Paras 21-25)
Facts of the case:
The applicant was dismissed for purported absence from duty without permission, which he contested, asserting wrongful salary deductions and improper dismissal procedures.
Findings of Court:
The applicant was found partially entitled to salary payments for the months of October and November 2007, while the dismissal was largely upheld.
Issues: Was there wrongful salary deduction, and was the dismissal procedurally fair?
Ratio Decidendi: The court ruled that while the dismissal was mostly valid, the total salary stoppage contravened General Orders, and proper procedural rights were curtailed.
Result: Application allowed in part.
| Table of Content |
|---|
| 1. grounds for dismissal and salary disputes. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7) |
| 2. breach of procedures in disciplinary actions. (Para 8 , 12 , 18) |
| 3. court's reasoning on procedural fairness and delay. (Para 9 , 10 , 11 , 13 , 14 , 15 , 16 , 19 , 20 , 21 , 22 , 23 , 24) |
| 4. affirmation of dismissal but ruling on salary stoppage. (Para 25) |
[1] The applicant was employed an Administrative Assistant Grade N17 with Lands & Surveys Department, Betong Division when he was found guilty of and dismissed by the 1st respondent vide a letter dated 5 January 2010, for being absent from duty without permission and reasonable cause. Order 153(4)(j) of the State Service General Orders 1996 ("General Orders") stipulates that an officer shall not be so absent from duty and if he does, under O 171(1) of the said General Orders, he is then liable to disciplinary action.
[2] The applicant has taken this application for a certiorari to quash the order of his dismissal and a mandamus to direct the four respondents to reinstate him back to his former post with backwages and all other entitlements thereto with effect from October 2007.
[3] In his affidavit in support of the application, the applicant said his salary for the month of October 2007 was suddenly stopped even though there was a directive in writing by the then Superintendent of Lands & Surveys Betong, Mdm Peggy Ronin, to withdraw the minute directing stoppage of his salary after he had leave) in the said month and not six days (26 September 2007, 27 September 2007, 5 October 2007, 8 October 2007, 9 October 2007 and 10 October 2007) as alleged in the show cause letter of Mr Mohd Akbar bin Sahmoni dated 16 October 2009.
[4] The applicant had replied to the show cause letter and despite the withdrawal of the directive on the stoppage of his salary, he discovered that his November salary was also stopped. When he was ordered out of Mdm Peggy Ronin's Office after failing to get a clarification from her on his salary, he did not return to work until the dismissal letter came.
[5] In respect of the disciplinary proceeding held by the 1st respondent - he had replied as requested in the 1st respondent's show cause letter dated 26 August 2008 (which contained the charge against him) and his written representation dated 20 October 2008 was received by the 1st respondent.
[6] He had further attended the Lands & Surveys Department's Board of Investigation held on 30 January 2009 in which he claimed he was only interviewed after the Board had interviewed the other witnesses in his absence. The applicant further disputed the constitution of the Board which he said consisted of officers who had close working relationship with Mdm Peggy Ronin. He also contended that the decision to terminate his service was not made within a reasonable time seeing how the letter of termination was only dated 5 January 2010 when the show cause letter from the 1st respondent was dated 26 August 2008 and the Board of Investigation of the Department had sat on 30 January 2009.
[7] The applicant is challenging his dismissal and termination from service on the grounds of:
(i) wrongful deduction of his salaries; and
(ii) wrong procedure for dismissal and breach of natural justice
Wrongful Deduction Of Salaries In October And November
[8] In respect of this issue, I note that Mdm Peggy Ronin whom the applicant alleged had minuted on the department's show cause letter dated 10 October 2007 to stop his salary and then withdrawing the same, giving him one month to improve himself, did not file any affidavit evidence to refute what he has alleged. In fact the two affidavits filed by the respondents did not address this allegation either. Further, in the 1st respondent's show cause letter to him dated 26 August 2008 (exh A6 to the applicant's affidavit) the dates he was alleged to have been absent from work is exhibited as Annexure A. For October 2007 - it was 5 days and November 2007 - it was eight days.
[9] Ther
