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COURT OF APPEAL, KUALA LUMPUR
HJ ALI HJ OTHMAN – Appellant
Versus
TELEKOM MALAYSIA BHD – Respondent
[Civil Appeal No: J-02-31-1997]
JUDGMENT
Gopal Sri Ram JCA:
This is the judgment of the court.
This appeal does not raise any new point of law. It merely has to do with the application of settled law to the peculiar facts of this case. The broad question at issue here is whether the appellant received procedural fairness in the hands of the respondent before he was dismissed from the latter's employment. The brief facts relevant to that issue lie in a narrow compass.
At all material times the appellant was in the respondent's employment. In 1990, disciplinary proceedings were commenced by the respondent against the appellant for misconduct. Five charges were formulated and served on the appellant. In a gist, they concern a 'form guarantee' of the respondent said to have been dishonestly appropriated by the appellant and fraudulently used by him to obtain medical treatment for his wife from the General Hospital at Johor Bahru. A domestic inquiry found the appellant guilty on four charges but acquitted him of the fifth. By a letter dated 3 July 1990, the appellant was informed that he was dismissed from service and that he might avail himself of the domestic appellate machinery. The appellant then appealed, but without success. Dissatisfied, the appellant brought an action against the respondent claiming, inter alia , a declaration that his dismissal was null and void. After a trial at which viva voce evidence was led, the High court found against the appellant and dismissed his action. The present appeal is directed against that order.
Before us it was argued that the appellant's dismissal was bad for breach of both the nemo judex and the audi alteram partem branches - what Lord Denning in Kanda v. The Federation of Malaya , [1962] MLJ 169 called the twin pillars - of the rules of natural justice. These rules are directed at ensuring impartiality and fairness in public decision making. They are encompassed in arts. 5(1) and 8(1) of the Federal Constitution and are directed at giving a citizen the minimum standards of fairness in all forms of State action. See, Ong Ah Chuan v. PP ; [1981] 1 MLJ 64; Maneka Gandhi v. Union of India [1978] AIR597; Pierson v. Secretary of State for the Home Department [1997] 3 All ER 577. In the context of modern administrative law, they are treated as forming part of the wider doctrine of procedural fairness and vary in their content and applicability according to the facts of a given case. See, The Board of Education of the Indian Head School v. Knight [1990] 1 SCR 653.
We find it unnecessary to deal with the complaint based on the alleged breach of the nemo judex rule because, as observed by Denis Ong Jiew Fook JCA during argument and conceded by learned counsel for the appellant, this is a point not canvassed in the court below. The principle is too well settled that this court will not, save in limited cases, entertain a point of law not taken at first instance. If authority is needed for this it may be found in the decision of the Federal court in Gulwant Singh v. Abdul Khalik [1965] 1 MLRA 254 , [1965] 2 MLJ 55 where Thomson LP said at p. 58:
A point which is not raised at the trial and which is raised for the first time in the court of Appeal must always be most jealously scrutinized (The Tasmania [1890] 15 App Cas 223 at p. 225). The question of whether effect should be given to such a point is, however, one for discretion (see Perkowski v. Wellington Corp [1959] AC 53 at p 69) and the principles on which that discretion may be exercised have been thus set out in the case of Connecticut Fire Insurance Co v. Kavanagh [1892] AC 473 at p. 480) (per Lord Watson):
When a question of law is raised for the first time in a court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient, in the interests of justice, to entertain the plea.
In the present case, we found ourselves in a most difficult position so far as the point at issue
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