1. Public officer dismissed for approving passport application using forged identity card — Judicial review sought to quash dismissal and obtain reinstatement. (Para 1 , 4 )
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2022 MarsdenLR 2872
HIGH COURT (IPOH)
SU TIANG JOO, JC
Jefren bin Mohamed Razali – Plaintiff
Versus
v Dato Seri Hj Mustafar bin Hj Ali (disaman dalam kapasiti sebagai Pengerusi Lembaga Tatatertib Kumpulan Sokongan (No 1) Jabatan Imigresen Malaysia) & Ors – Defendant
JUDICIAL REVIEW APPLICATION NO AA-25-5-04 OF 2020
Advocates:
Manjit Singh Mann (Manjit Singh Mann & Co) for the applicant.
Ashyraf Ashyari bin Kamaruzaman (Perak State Legal Advisor Office) for the respondent.
Manjit Singh Mann (Manjit Singh Mann & Co) for the applicant.
Ashyraf Ashyari bin Kamaruzaman (Perak State Legal Advisor Office) for the respondent.
Disciplinary proceedings for public officers satisfy natural justice through the service of charges and written representations; oral hearings are discretionary, and no strict limitation period applies to such charges, particularly where public integrity and national security are at stake.
Headnote:(A) Public Officers (Conduct and Discipline) Regulations 1993 - Regulations 4(2)(e), 4(2)(i), 37(2)(b), 38(f) and 38(g); Public Services Disciplinary Board Regulation 1993 - Regulations 14 and 15(1); Federal Constitution - Article 135(2); Rules of Court 2012 - Order 53 rule 6 - Dismissal of public officer for approving passport application based on forged identity card - Right to be heard - Provision of documents - Oral hearing - Delay in disciplinary action.
(B) Disciplinary authorities are not obliged to provide all documents used in an investigation unless required by specific regulations; the service of the charge and the opportunity to make written representations are sufficient to satisfy the right to be heard (Paras 49-50).
(C) An oral hearing is not mandatory in disciplinary proceedings and is only necessary if the disciplinary authority considers that the case requires further clarification (Paras 41, 63).
(D) Where procedure is provided by written laws, common law principles on delay are not readily invoked; there is no limitation period for disciplinary charges under the 1993 Regulations, and the concept of condonation does not apply to breaches of public service regulations affecting national integrity (Paras 64-69).
Facts of the case:
A public officer was dismissed for approving a passport application based on a non-existent identity card. The officer challenged the dismissal via judicial review, alleging a breach of natural justice due to the non-provision of specific documents, the absence of an oral hearing, and an alleged undue delay in initiating disciplinary action.
Findings of Court:
The court found that the officer was served with the necessary charges. The request for documents was not proven to have been received, and the officer failed to utilize discovery procedures during judicial review to challenge the authenticity of the signature. The evidence against the officer was sufficient, making an oral hearing unnecessary. The delay was justified by the need for a comprehensive investigation.
Issues: Whether the failure to provide requested documents, the lack of an oral hearing, and the delay in initiating disciplinary proceedings constituted a breach of natural justice or implied condonation of the misconduct.
Ratio Decidendi: The right to be heard under the Federal Constitution is satisfied by the service of the charge and the opportunity to make written representations. Discovery of documents can be sought during judicial review. Oral hearings are discretionary. Disciplinary proceedings under specific regulations are not subject to a strict limitation period, especially when public policy and national integrity are concerned.
Result: Substantive application for judicial review dismissed with costs.
Act Referred
Public Officers (Conduct and Discipline) Regulations 1993: Reg.4(2)(e), Reg.4(2)(i), Reg.38(f), Reg.38(g), Reg.37(2)(b)
Public Services Disciplinary Board Regulation 1993: Reg.14, Reg.15(1)
Federal Constitution: Art.135(2)
Interpretation Acts 1948 and 1967: S.54
Evidence Act: S.73A(3)
Rules of Court 2012: O.53 R. 6, O.24, O.26, O.38
Public Services Disciplinary Board Regulation 1993: Reg.14, Reg.15(1)
Federal Constitution: Art.135(2)
Interpretation Acts 1948 and 1967: S.54
Evidence Act: S.73A(3)
Rules of Court 2012: O.53 R. 6, O.24, O.26, O.38
Legal Category Hierarchy
Table of Contents
2. Alleged breach of natural justice — Non-disclosure of evidence — Lack of oral hearing — Undue delay in initiating disciplinary proceedings. (Para 15 , 18 , 21 , 23 )
3. No regulatory obligation to provide all documents — Oral hearing not mandatory where evidence is sufficient — No limitation period for disciplinary charges under 1993 Regulations. (Para 49 , 63 , 65 )
4. Disciplinary proceedings under 1993 Regulations do not require mandatory oral hearings or strict limitation periods unless specified by written law. (Para 63 , 65 )
5. Application for judicial review dismissed with costs. (Para 70 )
6. Is a disciplinary authority required to provide all documents used in an investigation to the accused officer?
No. Under the Public Officers (Conduct and Discipline) Regulations 1993, there is no provision obliging the authority to provide all documents; only those specifically required by regulation 37(2)(a) and (b) must be served. (Para 49 , 50 )
7. Is an oral hearing mandatory in public service disciplinary proceedings?
No. An oral hearing is not mandatory and is only necessary if the disciplinary authority considers that the case requires further clarification, such as by appointing a Committee of Inquiry. (Para 41 , 63 )
8. Does a delay in initiating disciplinary proceedings constitute procedural unfairness or condonation of misconduct?
Not necessarily. There is no limitation period for disciplinary charges under the 1993 Regulations. Delay does not automatically result in procedural unfairness or condonation, especially regarding public service integrity. (Para 64 , 65 , 69 )
Su Tiang Joo JC:
JUDGMENT
Introduction
[1]The Applicant served in the Malaysian Immigration Department. He was found guilty of having approved an application for a Malaysian International Passport by an applicant who used a forged national identity card. He was dismissed. He commenced judicial review proceedings to quash this decision and to be reinstated. His application was dismissed and these are the grounds of judgment.
Background
[2]At the time of his dismissal, the Applicant having served in the Malaysian Immigration Department (MIM) for about 23 years, was 43 years old.
[3]Disciplinary proceedings which led to his dismissal commenced with a show-cause letter to him dated 3 April 2018 (Enclosure 5 exhibit P3) from the Chairman of the Disciplinary Board (R1) informing the Applicant that a report had been received which warrants disciplinary action with the view to having him dismissed or demoted.
[4]In the show-cause letter of 3 April 2018 received by the Applicant on 16 April 2018 (Enclosure 5 exhibit P3 pp 49 to 52), it was alleged that whilst on duty at Pejabat UTC, Perak, Jabatan Imigresen Malaysia, Negeri Perak on 22 March 2016 the Applicant had approved an application by one Harlizah Binti Jaman for a Malaysian International Passport. As it turned out, this applicant had relied upon a MyKad No. 891208-14-5058 which was later confirmed to be non-existent, that is, it was not issued by the National Registration Department.
[5]The Applicant was also informed that such act of dereliction could be deemed to be a misconduct in breach of Regulations 4 (2) (e) and 4 (2) (i) of the Public Officers (Conduct and Discipline) Regulations 1993 (1993 Regulations) and punishable under Regulations 38 (f) and (g). These Regulations are set out here:
4 (2) An officer shall not-
(e) lack efficiency or industry;
(i) be insubordinate or conduct himself in any manner which can be reasonably construed as being insubordinate.
38 If an officer is found guilty of a disciplinary offence, any one or any combination of two or more of the following punishments, depending upon the seriousness of the offence, may be imposed on the officer:
(f) reduction in rank; or
(g) dismissal.
[6]The Applicant was then asked to make his representations under Regulation 37 (2) (b) of the 1993 Regulations reproduced hereunder within 21 days from his receipt of the show-cause letter:
(2) If it appears to the Chairman of the appropriate Disciplinary Authority that there exists a prima facie case against the officer, the Chairman of the appropriate Disciplinary Authority shall-
(b) require the officer to make, within a period of twenty-one days from the date he is informed by notice in accordance with regulation 52 of the charge, a written representation containing the grounds upon which he relies to exculpate himself.
[7]The Applicant alleged by letter dated 19 April 2018 to R1 (Enclosure 5 exhibit P4), he had requested to be supplied with all documents in connection with the charge levelled against him. In this letter, he also asked for a copy of the Close Circuit Television (CCTV) recording of the day of the alleged incident to enable him to reply in detail. The Applicant also sought for an oral hearing to enable him to question witnesses who he said have levelled such an unfounded allegation against him.
[8]R1 allegedly did not accede to the Applicants requests contained in his letter of 19 April 2018. Nevertheless, within the 21 days limited to show cause, the Applicant replied (Enclosure 5 exhibit P5) denying he had placed his signature on the application form to signify approval and averred inter alia that some other officer could have used his user ID to process the impugned application. The Applicant also questioned the integrity of the departments computer system.
[9]By letter dated 20 December 2018 (Enclosure 5 exhibit P6), the Applicant was notified that he was dismissed for the charge levelled against him. Acting pursuant to Regulation 38 (g) of the 1993 Regulations (supra)
