JUDGMENT

Haidar Mohd Noor JCA:

Pursuant to a reference by the then Minister of Labour dated 22 December 1988 under s. 26(2) of the Industrial Relations Act 1967 concerning a trade dispute between Kumpulan Jerai Sdn. Bhd., Simpang Rengam ("KJSB") and the National Union of Plantation Workers ("NUPW") in connection with the dismissal of NUPW's members, Ali bin Gula Mohammad, Kamin bin Nasimin, Athinaidu s/o Appalasamy and Muhamad bin Abu Bakar ("the claimants") on 16 October 1988, the Industrial Court on 17 June 1993 vide Award No. 180 of 1993 made the following orders:

1. That the four dismissed claimants be reinstated as tappers from the date of dismissal, 16 October 1988;

2. The above four claimants be paid their backwages, allowances, increments and all other entitlements from the date of the dismissal to the date of reinstatement;

3. The four claimants be reinstated within one month of the date of this award;

4. That all backwages, allowances, increments ordered be paid within one month of the date of the award.

The four claimants were employees of KJSB as well as officials of the estate Union Committee of NUPW.

Being dissatisfied with the order of the Industrial Court, KJSB on 28 July 1993 filed an application for leave for an order of certiorari pursuant to O. 53 of the Rules of the High Court 1980 and leave was granted by the High Court on 29 September 1993. On 4 October 1993 KJSB filed the notice of motion for an order of certiorari to remove into the High Court for the purpose of quashing the order of the Industrial Court of 17 June 1993 vide Award No: 180 of 1993 (p. 333 of the Appeal Record). The High Court on 15 August 1995 made an order in terms of the application of KJSB with costs (p. 21 of the Appeal Record). Hence the appeal by NUPW before us.

We heard the appeal by NUPW against the order dated 15 August 1995 by the High Court on 23 March 1999. We allowed the appeal and ordered that the award of the Industrial Court be restored. We now give our reasons.

Background

KJSB is a member of the Malaysian Agricultural Producers Association (MAPA) and the first respondent in Industrial Court Award No. 111/86 in Persatuan Pengeluar Pertanian Tanah Melayu v. Kesatuan Kebangsaan Pekerja-Pekerja Ladang [1986] ILR 586 (Award No. 111/86).

Following acts of alleged misconduct, the four claimants were individually issued identical letters dated 15 September 1988 suspending them from work pending the two charges preferred therein to be heard on 20 September 1988. The hearing of the two charges against them was heard on 20, 21, 22 and 23 September 1988 by the Inquiry Panel set up by KJSB and they were found guilty on the first charge only (pp. 173-245 of the Appeal Record). It seemed that the alleged misconduct of the four claimants started with the death of a retired female tapper, Pangaroo d/o Kuppusamy on the estate of KJSB at about 7.30pm on 13 September 1988. It was related to unpaid leave for the Indian workers to attend the funeral. The claimants were found to have incited and instigated workers of KJSB on 13 September 1988 from going to work on 14 September 1988. As a result the four claimants were recommended to be downgraded from tappers to general workers by the Inquiry Panel.

By letters dated 29 September 1988, the four claimants were individually informed:

a) they had been found guilty of misconduct;

b) by way of punishment, they were downgraded to general workers with effect from 30 September 1988;

c) they were to report for work on 1 October 1988; and

d) they may appeal against the downgrading decision in accordance with the Redressal Procedure as provided for in Award No. 111/86.

The four claimants were not satisfied with the decision and by letter dated 29 September 1988, jointly informed KJSB accordingly of their dissatisfaction and requested to meet KJSB on 30 September 1988 at 3.30pm to resolve the matter. By letter dated 1 October 1988 KJSB informed each of the claimants that the meeting they ha