AWARD

This is an application by Patco Malaysia Bhd. (hereinafter referred to as "the company") under s. 33A of the Industrial Relations Act 1967 to refer to the High Court questions of law for its determination as provided for by the aforesaid section. The company in its original application raised seven questions. This application was subsequently amended to increase the number of questions to fourteen. At the outset of the hearing of the application the learned Counsel for the company asked these words "and/or in lieu of s. 30(5) of the Industrial Relations Act 1967 " be added to question and to delete the amended questions 7(c) to 14. This was agreed upon by the learned Counsel for the claimant.

I wish to state at this stage that one of the two panel members, Encik Sivananda withdrew himself from hearing the case before the continued hearing of the case began on 1 November 1995. Both the learned Counsel consented that the case was to go on with one remaining panel member sitting with me.

The company's application is in respect of the award of another division of the Industrial Court; Award No. 89 of 1992 handed down on 27 April 1992 (hereinafter referred to as "the award"). The questions which the company posed and pursued for reference read as follows:

1. Was the Industrial Court entitled in law to hold that it was not obliged to go into the charges of misconduct against the claimant because of the company's failure to hold a domestic inquiry in the light of Dreamland v. Chong Chin Sooi [1988] 2 MLJ 11 and/or in the light of s. 30(5) Industrial Relations Act 1967 ?

2. Did the Industrial Court err in law in extending without restriction the scope of s. 20(3) and s. 30(5) of the Industrial Relations Act 1967 so as to ignore the binding mutual agreement arrived at between the company and the claimant?

3. Did the Industrial Court err in law in holding that undue influence, pressure and duress vitiated the claimant's contract with the company in that:

(i) the Contracts Act 1950 provides that the effect of undue influence, coercion and duress if proven, is to render a contract voidable, not void;

(ii) the claimant elected to affirm the said contract with the company rather that avoid it.

4. Did the Industrial Court err in law in awarding reinstatement and full backwages for a period of 6 years to the claimant in view of s. 30(3), s. 30(4) and s. 30(5) of the Industrial Relations Act 1967 and without it specifically addressing its mind as to the question of mitigation and/or contributory conduct and/or whether this was an appropriate case for reinstatement.

5. Did the Industrial Court err in law in holding without qualification that acquiescence has no place in industrial adjudication?

6. Did the Industrial Court err in law in holding that a domestic inquiry in respect of the charges of misconduct were necessary having regard to the fact that this was a case of alleged constructive dismissal?

7. Did the Industrial Court err in law in holding that the claimant was constructively dismissed in that it failed and/or neglected to consider that:

(a) it was the claimant who first repudiated his contract of employment and that the company was merely accepting his repudiation;

(b) that there was no threat of dismissal to the claimant if he refused to resign as general manager?

The award in issue was also the subject matter of an application by the company for leave to apply for an order of certiorari in the High Court. Leave was granted but the workman concerned, Tuan Haji Sarip bin Hamid (hereinafter referred to as "the claimant") appealed to the Supreme Court (now Federal Court) against the granting of the leave. The Federal Court heard the appeal and struck out the leave granted to the company by the High Court - (see [1995] 2 MLJ 422 for the judgment).

It was submitted to us by the learned Counsel for the claimant that the Federal Court had already held that there were no merits to quash the award on jurisdictional ground and that the applicat