Balia Yusof JC:

By this application (encl. 9) the applicant, a company is seeking for an order of certiorarito set aside or quash the award of the industrial court made on 30 August 2001.

The first respondent was in the employment of the applicant company and at the time of his dismissal he held the post of an assistant line captain and his last drawn salary was RM1,439. On 22 September 1999 the respondent was caught by the security guard taking out 1.5 litres of thinner contained in a bottle and he was subsequently charged with deliberately and knowingly taking out 1.5 litre of thinner without authorization or prior approval before a domestic inquiry which was held on 6 October 1999. The first respondent was found guilty as a result of which his services with the applicant was terminated on 7 October 1999. A reference under s. 20(2) of the Industrial Relations Act 1967 was made videMahkamah Perusahaan No. 11 (10)/4-449/00 and by an award handed down dated 30 August 2001 the Industrial Court made an order that the applicant pay the first respondent a sum of RM54,682 after having concluded that the applicant has dismissed the first respondent not only without just cause or excuse but it is also unreasonable , not in good conscience and excessively harsh. Against this order, the applicant has filed the present application before this court for an order of certiorari to quash the said decision of the Industrial Court.

The applicant contended that the Industrial Court has committed an error of law in its approach of dealing with the matter with regard to the issue of burden of proof and the standard of proof that ought to be adopted in proceedings before the Industrial Court. Although the applicant has enumerated extensive grounds in support of its motion, I find that in a nutshell it is essentially the issue of standard of proof that forms the basis of this application. It is contended by the applicant that the learned chairman was wrong in law in treating the whole proceeding before the Industrial Court as a criminal proceeding and applying a very stringent test in respect of the evidence to be adduced by the parties before it. In my view the numerous points highlighted by the applicant in encl. 13 which sets out the grounds supporting the application points merely toward the direction of criticizing the chairman's evaluation and appreciation of the evidence adduced by the applicant in establishing the charge against the first respondent.

In support of his submission, counsel for the applicant relied on the case of Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sangunai Nair & Anor [2002] 3 CLJ 314 which held that in hearing a claim of unjust dismissal where the employee was dismissed on the basis of an alleged criminal offence such as theft of company property, the Industrial Court is not required to be satisfied beyond a reasonable doubt that such an offence was committed. The standard of proof applicable is the civil standard, ie, proof on a balance of probabilities which is flexible so that the degree of probability required is proportionate to the nature and gravity of the issue. The court of appeal further held that the Industrial Court should not be burdened with technicalities concerning the different standard of proof or the rule of evidence or procedure that are applied in a court of law. In holding that the applicant has failed to prove dishonest intention and further stating that the applicant has not been able to discharge their evidential burden in failing to prove every element of the charge, the Industrial Court has adopted and applied a wrong standard of proof that is required of the applicant. The function of the Industrial Court is best described by the Federal Court in the case of Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal [1995] 3 CLJ 344 which held:

On the authorities, we were of the view that the main and only function of the Industrial Court in dealing with a refer