Procedural fairness in disciplinary actions requires clear communication of potential punishment to ensure the accused has a fair opportunity to respond.

Gopal Sri Ram JCA:

As long ago as March 1991, the respondent was dismissed from the public service. On 6 November 1991 he instituted proceedings for wrongful dismissal. His action was heard and disposed off on 30 May 1996. The learned judge who tried the action held that the respondent had been wrongfully dismissed. He granted the respondent the relief sought by him. The appellants being dissatisfied with the decision appealed to this court. Their appeal was heard and dismissed on 3 May 1999.

The issue in this appeal concerns the right to procedural fairness. It is a constitutional right. It forms one of the cornerstones of our public law jurisprudence. It is an issue which our courts have already dealt with in several cases. See, Kanda v. The Government of Malaya 1962 MarsdenLR 437, Rohana bte Ariffin & Anor v. Universiti Sains Malaysia 1986 MarsdenLR 72; [1989] 1 MLJ 487; Tan Tek Seng V. Suruhanjaya Perkhidmatan Pendidikan & Anor. [1995] 3 CLJ 279 and the very recent decision of the Federal Court in Majlis Perbandaran Pulau Pinang v. Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor 1999 MarsdenLR 1404 ; [1999] 3

MLJ 1. Although the content of procedural fairness is well settled, its application varies according to the facts of each particular case. It is necessary to allude to the factual matrix relevant to this appeal in order to appreciate the issues.

At all material times, the respondent was employed as a hospital attendant at the Penang General Hospital. On 5 May 1990, the respondent underwent a spot urine test. About eight months later, by a letter dated 31 January 1991, the first appellant instituted disciplinary proceedings against the respondent. It is an important document. The judge produced it in extenso in his judgment. We will merely reproduce the relevant portion of that letter. When translated into English it reads as follows:

[T]he Disciplinary Board, after considering all information received, is of the view that you are to be subjected to disciplinary action with a view to dismissal or demotion pursuant to General Order 26, Public Officers (Conduct and Discipline) (Chapter D) General Orders 1980 on the following charges:

That you, Mr. Utra Badi a/l K. Perumal, while on duty as a Hospital Attendant T. Biasa in the General Hospital, Penang in an on-the-spot urine test on 5th May, 1990 was confirmed to be a drug addict because a urine sample taken was found to be positive for morphine.

Your act in becoming a drug addict amounts to an act which can bring disrepute to the Public Service and which contravenes the conduct under General Order 4(2)(d), Public Officers (Conduct and Discipline) (Chapter D) General Order 1980.

If you are found guilty, you will be punished pursuant to General Order 36 of the same General orders.

Pursuant to General Order 26 of the General Orders (Conduct & Discipline) (Cap. D) you are required to make a written representation setting out the grounds upon which you seek to exculpate yourself.

For completeness, I will reproduce the three General Orders referred to in the aforesaid letter.

The first is General Order 4(2)(d) which reads:

(4) The following is the code of conduct of officers in the public service.

The breach of any of the provision of this code by an officer renders him liable to disciplinary action under these General Orders:

(2) An officer shall not -

(d) conduct himself in such manner as to bring the public service into disrepute or to bring discredit thereto;

The second is General Order 26 which reads as follows:

26(1) Where it is represented to, or is found by, the Appropriate Disciplinary Authority that an officer is guilty of unsatisfactory work or misconduct and such work or misconduct, in the opin