Mohamed Azini J:

This is an application by notice of motion by Assunta Hospital for an Order of Prohibition to prohibit the Chairman of the Industrial Court, Mr. K Somasundram, from proceeding with the hearing of Industrial Court Case No. 83 of 1976 on the grounds that:

(1) the Industrial Court has no jurisdiction to order the Comptroller of Immigration to issue a Visit Pass for temporary employment in place of a citizen;

(2) the Industrial Court does not have jurisdiction to hear the case, because it cannot order the reinstatement of a non-citizen;

(3) the respondent, Dr. A Dutt, is not a "workman" under the Industrial Relations Act, 1967, since the Doctor's contract with the applicant Hospital was a contract for service and not a contract of service; and

(4) the Chairman of the Industrial Court by sitting alone without the consent of the parties, contravenes s. 20(4) of the Industrial Relations Act and is proceeding without jurisdiction.

Counsel for the Hospital however, concedes that the actual issue in this case is whether the Industrial Court has jurisdiction to hear Dr. Dutt's case.

The brief facts of the case as contained in the affidavit of Dr. Thomas Varughese, the Medical Supervisor of the applicant Hospital, are that Dr. Dutt joined the Assunta Hospital - a corporation registered under the Companies Act - on 1 September 1963 as a Radiologist. When Dr Dutt's services were terminated by the Hospital on 29 February 1976, he was holding the post of Director of Radiology and the Head of the Hospital's Radiological Department, by virtue of his contract with the Hospital in 1972. Under the said contract, his period of engagement was "permanent", but the contract could be terminated with three months' notice on either side. His salary was fixed at $3,000 per mensem plus 500f the fees of first-class patients; patients referred by medical practitioners and other patients seeking radiological examination. Other benefits included vacation leave, sick leave, Provident Fund contribution and free double return air passage to India once in three years. At all relevant times, Dr. Dutt is not a citizen of Malaysia, and he has been working in this country since 1963 on a Visit Pass (Temporary Employment) granted under r. 11 of the Immigration Regulation, 1963 on a yearly basis. As far as the Malaysian Government is concerned, the post held by Dr Dutt can be filled by expatriate until the end of 1980, after which period, the position will be reviewed. On 4 May 1976, the Honourable Minister for Labour referred to the Industrial Court under s. 17A(3) [now s. 20(3) - Act 177] a representation made by Dr Dutt that he had been dismissed without just cause or reason. When the case came up for hearing in the Industrial Court on 6 July 1976, the Chairman, Mr. K Somasundram, sat alone without a panel. As a result of the present application, the case before the Chairman of the Industrial Court was adjourned.

For purpose of convenience, I will deal with this application under the Revised Act (Act 177) of the Industrial Relations Act, 1967. Section 20 of the Revised Act has five sub-sections. The first three sub-sections provide:

(1) Where a workman who is not a member of a trade union of workmen considers that he has been dismissed without just cause or excuse by his employer he may, within one month of the dismissal, make representations in writing to the Director General to be reinstated in his former employment; the representations may be filed at the office of the Director General nearest to the place of employment from which the workman was dismissed.

(2) Upon receipt of the representations the Director General shall take such steps as he may consider necessary or expedient so that an expeditious settlement thereof is arrived at within a period of not more than thirty days from the date of receipt of the representations. Where the Director General is satisfied that there is no likelihood of the representations being settled