Shaik Daud Ismail JCA:

These two appeals emanate from the High Court issuing an order of certiorari quashing the order of the Minister of Human Resources who refused to refer the respondent's application to the Industrial Court and an order of mandamus directing the Minister to exercise his discretion under s. 20(3) of the Industrial Relations Act 1967 (the Act) to refer the matter to the Industrial Court.

The facts of the matter is that respondent was employed by Berjaya Industrial Bhd. (the company) on 16 August 1988 as the manager of its hotel and resort. The respondent served the company for 5275 years and his last post was Vice President and General Manager Hotel and Resorts. This was a re-designated post with effect from 1 January 1994. The duties and functions remained the same as before the re-designation.

On 30 March 1994 the company suspended the respondent but without any loss of emoluments, benefits and other perks, upon a purported allegation of gross and serious misconduct which the company alleged they were investigating. The notice of suspension did not spell out the alleged misconduct but merely stated that it had been alleged that the respondent had committed various acts of misconduct. About 20 days later when nothing transpired the respondent wrote a letter to the company dated 21 April 1994 requesting that he be informed of his position by 28 April 1994. The company replied by a letter dated 25 April 1994 that the investigation was still pending and this time added that the suspension with full pay will continue until the investigation was completed. Then by a letter dated 26 April 1994 the respondent wrote that it was clear that the company did not have any material justifying the sudden suspension and that the prolonged investigation confirmed this. He also gave notice that if the suspension was not lifted and he be reverted to his old job in the company on or before 4 May 1994, he considered himself dismissed by the company with effect from that date. The company replied by letter dated 3 May 1994 denying the respondent's allegation and that the nature of the allegations were such that it required in depth and prolonged investigation, and that the investigation was still in progress and the suspension should continue.

Since the ultimatum given by the respondent was not met by 4 May 1994, and since there is no provision for a suspension in his contract of service, he considered himself to have been constructively dismissed with effect from 4 May 1994, and he said so in his letter to the company dated 3 May 1994.

Thereafter the respondent made representation to the Director of Industrial Relations vide letter dated 10 May 1994, under s. 20(1) of the Act on the ground that he was dismissed without just cause or excuse by the company. Then by a letter dated 21 January 1995, the respondent was informed that the Minister of Human Resources had decided under s. 20(3) of the Act, that his representation was not fit and proper to be referred to the Industrial Court without alluding to any reasons thereof. This prompted the respondent to file the application for an order of certiorari and mandamus in the High Court.

Dato' V. Sivaparanjothi for Berjaya Industrial Bhd. contended that the learned judge erred in law when he issued the order of certiorari and mandamus on the ground that the terms and conditions of the employment do not provide for a suspension and therefore the Minister ought to refer the matter to the Industrial Court. It is common ground that there was no suspension clause in the terms and condition of the respondent's employment. In spite of this, it was argued that provisions of suspension is always implied in every contract of employment.

Senior federal counsel Asmabi Mohamad representing the Minister of Human Resources was of similar view.

First and foremost we should make it clear that we are here not hearing this appeal on its merits since the matter was never decided by the In