Augustine Paul FCJ (delivering judgment of the court):

The claim in this appeal arose from the recruitment of the plaintiffs (the respondents before us), foreign workers from India, by the defendant (the appellant before us). The High Court gave judgment for the plaintiffs. This appeal is by the defendant.

The facts of the case as found by the learned trial judge are as follows. An agreement was entered into between Malaysia and India for the latter to supply expert and manual workers to work in Malaysia. In order to protect its citizens and to ensure that they obtain fair and reasonable wages and treatment, the Indian Government had imposed certain mandatory requirements which a prospective foreign employer must meet before the Indian Government would release its citizens for such employment. The prospective employer would have to submit the following documents:

(a)a demand letter for recruitment of workers from India;

(b)a contract of employment;

(c)a power of attorney;

(d)an affidavit from the employer.

The learned trial judge dealt with the requirements of these documents based on the evidence adduced.

(a) The Demand Letter

The letter was in the defendant's letter head and addressed to their agent Mithun Travels Pte Ltd (‘Mithun’) in India. This letter dated 11 July 2002 requested for 100 general workers between the ages of 21 and 35 years. It also stated that their monthly basic salary would be RM600 with overtime provided. It stipulated that the workers would work six days a week for eight hours a day. Accommodation and transport would be provided free. The letter also stipulated that the employer would be responsible for all government levy and other immigration charges and that the employer would provide the employees with free return air-tickets from India to Malaysia.

(b) The Contract of Employment

The contract of employment (‘the contract of employment’) was also on the defendant's letter head. It defined the defendant as the employer and the worker as employee. It contained 22 clauses almost identical in terms to those contained in the demand letter. It was signed by the employer's representative one Tsai Yang Chuan who was the defendant's first witness in these proceedings and who described himself as the managing director of the defendant. He signed it in the High Commission of India in Kuala Lumpur before a local Notary Public, Mr Inderjit Singh. Besides his signature, he also declared that he had gone through the contents of the contract of employment and understood it completely. He undertook not to violate any clause mentioned in the contract of employment and he agreed that he was liable for action in case of any violation. His signature was attested by the Second Secretary to the High Commission of India in Kuala Lumpur. However, the contract of employment was not signed by the employees.

(c) Power of Attorney

There was a power of attorney given to Mithun by the defendant to enable Mithun to handle all the defendant's affairs associated with the recruitment of workers for employment with the defendant. It was again signed by Tsai Yang Chuan.

(d) Affidavit

The document entitled as an ‘affidavit’, stated that the management of the defendant which intended to employ 100 Indian workers as production operators, undertook the responsibility of repatriating any Indian worker as a result of breach of contract by either side, by providing a return air-ticket at the defendant's expense and settling the employees’ dues, besides returning the passports to the holders.

Upon being satisfied that its citizens have been properly secured of an employment with the required basic salary, the Protector of Emigrants would then issue a clearance for the citizen to leave India and the protector's clearance would be endorsed on the employee's passport, as was done in this case. Sampath Kumar (PW1) exhibited the relevant page of his passport bearing this clearance which bore the contract number of the contract of employment between the parties.

At