The disciplinary authority committed procedural error by failing to consider the defense of condonation, leading to the reinstatement of the appellant.

Ravinthran Paramaguru JCA:

[1] This is an appeal against the decision of the High Court that dismissed an application for judicial review. The application was made to reinstate the appellant who had been dismissed from service.

Background Facts

[2] We shall set out the facts that were summarized by the learned High Court Judge and other relevant facts deposed in the affidavits. The appellant was an officer (Pegawai Tadbir dan Diplomatik) with the Administrative and Diplomatic Service. She joined the Administrative and Diplomatic Service on 20 December 2010. With effect from 2 May 2015, she was placed on the acting salary grade of 44 and posted to "Bahagian Pengurusan Pekerja Asing" in the Ministry of Home Affairs. But she did not report for duty on 2 May 2014. Subsequently she was absent from work for a total of 68 days between May and December of 2014. Her Head of Department issued her a show cause letter and a directive to report for duty on 23 June 2014. The two letters were sent via ordinary post. A report was sent to the Integrity Unit of the Ministry of Home Affairs by the Head of Department. She sent her representation on 4 July 2014 to her Head of Department. He accepted her explanation. The appellant was not reported to any disciplinary authority for action to be taken against her that year. She resumed work after her absence on various days in 2014.

[3] However, in the latter half of 2016, she was again absent from work without permission for a total of 11 days. This time, the appellant's superiors appeared to have had more resolve in taking disciplinary action against her. On 10 November 2016, the appellant was referred to the "Pengerusi Lembaga Tatatertib Kumpulan Pengurusan (No 2), KDN" which is the disciplinary authority to ascertain the seriousness of misconduct of an officer of her rank. In the exercise of his powers under reg 35 of the Public Officers (Conduct and Disciplinary) Regulation 1993 (the 1993 Regulations), the Chairman of the "Lembaga Tatatertib Kumpulan Pengurusan (No 2), KDN" ascertained that the allegation of misconduct warranted disciplinary action to be taken under reg 37 which is with a view for dismissal or reduction in rank. Under reg 35, the Chairman of a disciplinary authority is required to refer the case to the appropriate disciplinary authority that has the power to impose the punishment of reduction of rank or dismissal. It is common ground that the disciplinary authority that has such power in the instant case for a PTD officer is the Public Services Commission (the first respondent). In the premises, the case of the appellant was referred to the Public Services Commission. On 1 March 2017, the Chairman of the Public Services Commission determined that there was prima facie case for such action to be taken.

[4] A show cause letter dated 8 March 2017 was issued to the appellant on a charge under reg 4(2)(g) and reg 4(2)(i) of the 1993 Regulation. The charge was that she was absent from work for a total of 79 days in 2014 and 2016. The appellant submitted her letter of representation on 7 April 2017. She did not dispute the fact that she was absent for many days from work but attempted to explain it. The reasons she gave included the death of her father, her marital problems and health problems of her children. The Public Services Commission deliberated on 24 May 2017 and decided to dismiss the appellant from service. The appellant was informed of the decision by letter dated 6 June 2017.

[5] In her application for judicial review, the aggrieved appellant sought the following reliefs:

(i) An order of certiorari to quash the decision of the Public Services Commission (the first respondent) dated 9 June 2017, dismissing the applicant from service with effect from 24 May 2017;

(ii) A declaration that the said decision is null and void;

(iii) An order of mandamus to reinstate the applicant as 'Pegawai Tadbir dan Diplomatik Gred 44 (Memangku)' together with the remunerations that she was enti