Raja Azlan Shah CJ (Malaya) (delivering the judgment of the Court):

This is an appeal by the National Union of Hotel, Bar and Restaurant Workers ("the appellants") against the decision of Gunn Chit Tuan J made on 2 January 1980 refusing to grant an order of certiorari to quash the decision of the Minister of Labour and Manpower ("the Minister") to refuse to refer to the Industrial Court a trade dispute involving the dismissal of five hotel workers of the Casuarina Beach Hotel Penang, who are members of the appellants under s. 26 sub-section (2) of the Industrial Relations Act, 1967. The subsection is in these terms:

(2) The Minister may of his own motion refer any trade dispute to the Court if he is satisfied that it is expedient so to do.

On 22 May 1978 at about 10pm the five hotel workers together with one Raman Che Mat (a non-union member) were found gambling while on duty in the hotel premises. A domestic inquiry was held on 29 May 1978 before they were all dismissed for gambling while on duty and neglect of duty.

Raman Che Mat being a non-union member made representations to the Director-General for Industrial Relations under s. 20(1) of the Act. Three meetings were held under s. 20(2). Raman Che Mat denied gambling in the hotel premises. The Minister referred his case to the Industrial Court as an industrial dispute.

The appellants on behalf of the five union workers reported the trade dispute to the Minister pursuant to s. 18(1) of the Act, and requested that it be referred to the Industrial Court. The Director-General was directed to take the necessary steps to resolve the dispute. He in turn directed the Director of Industrial Relations, Penang, Kedah and Perlis to do so. The latter held two conciliation meetings but to no avail. During those two meetings the representatives of the appellants admitted that the five union workers were gambling while on duty in the hotel premises, thus contravening r. 13(3) of the said Hotel Rules. The Director put up a report annexing the record of the two meetings for consideration by the Director-General who in turn put up his report to the Minister on 30 November 1978. The Minister gave due consideration to the report and the facts and circumstances relating to the dismissal of the five union workers without taking into account their status as union members. He was of the opinion that the explanations and statements made by Raman Che Mat particularly his denial that he participated in the gambling at the conciliation proceedings were different from those of the five union members. Clearly he considered the admission of gambling made by them fully justified their dismissal. Consequently he refused to refer their case to the Industrial Court stating that the complaint was vexatious and without merit.

The appellants now contend as they did before the learned Judge that the Minister failed to take into consideration the case of Raman Che Mat which was referred to the Industrial Court and which, they said, arose from similar facts and circumstances as those which were the subject-matter of the trade dispute. In so failing, the Minister had exercised his discretion wrongfully and in a manner which was not in accord with the policy and object of the Industrial Relations Act, 1967. It was said that it is plainly the intention of the Act to refer such a trade dispute as the present to the Industrial Court.

The present case no doubt centered on the interpretation of s. 26(2) of the Industrial Relations Act, 1967, which provides that, where the Minister is "satisfied" that it is expedient so to do, he may of his own motion refer any trade dispute to the Industrial Court. This subjective formulation is sufficient in our opinion to show that the Minister has a discretion to determine the desirability or otherwise of a particular course of action within the scope of the discretionary power. It is the exercise by him of the discretion vested in him, not in the Courts, that we are he