Raja Azlan Shah CJ (Malaya)

(read by Syed Othman F.J.): On December 24, 1976 and June 16, 1977 an industrial court assumed jurisdiction to hear the complaint of Lee Eng Kiat (respondent 1) and S. Balasuppramaniyam (respondent 2), the chief security guard and security guard respectively, that they had been dismissed without just cause or excuse by their employer, the appellants. It assumed jurisdiction on the ground that section 20(1) of the Industrial Relations Act, 1967 (Act 177) does not impose an absolute obligation on a workman to make the representation within one month of the dismissal It also rejected the view of counsel that the word "may" refers to the discretion vested in the respondents either to bring the matter to the industrial court or to the common law court.

Section 20(1) of the Act is as follows:

"Where a workman who is not a member of a trade union of workmen considers that he has been dismissed without just cause or excuse by his employer he may, within one month of the dismissal, make representations in writing to the Director General to be reinstated in his former employment; the representations may be filed at the office of the Director General nearest to the place of employment from which the workman was dismissed."

The facts leading to the present appeal are as follows. Both the respondents (non-union members) were employed by the appellants as chief security guard and security guard some time in 1971. At about 2.00 a.m. on November 17, 1973, there was a report of theft at the appellants' factory premises. As a result of investigation conducted by the appellants on the spot, they found a substantial quantity of motor scooter tyres, motor scooter tubes, motor cycle tubes and motor car tubes manufactured by the appellants (total value of $560) in the boot of the respondent 1's car which was parked in the bicycle shed near the factory. Respondent 1 who was standing near the boot of his car admitted the theft and gave a written statement to that effect. Respondent 2 also admitted his part in the theft and he also gave a written statement to that effect. On the evidence available, the appellants were satisfied that the respondents were guilty of grave misconduct inconsistent with their express or implied conditions of employment. They were summarily dismissed.

A police report was immediately lodged. The respondents were taken into custody the same morning. They were charged with the theft of the said goods under section 381 of the Penal Code. They were granted bail. On June 21, 1976, they were (surprisingly) acquitted. On that date, some 31 months after their dismissal, they sought re-employment. The appellants refused to re-employ them. In July 1976, both respondents made representations to the Director General of Industrial Relations for reinstatement under section 20(1) of the Act. The Director General was not able to effect a settlement within the statutory period; he notified the outcome of it to the Minister who, exercising his discretion, referred the matter to the industrial court on September 30, 1976. The said court was invited to consider and determine a preliminary question, i.e., whether it had jurisdiction to entertain the claim in view of the time limit clause.

The industrial court found as a fact that both the respondents were summarily dismissed on November 17, 1973 and that time should run from that date. It also found that although there was inordinate delay in presenting the claim for reinstatement before the Director General, the said officer had considered this fact in the setting of all the other representations for reinstatement and all the facts and reasons for such delay. It further considered the fact that the Minister, after being notified by the Director General, thought fit to refer the representations to the industrial court whether or not to make an award. In those circumstances it came to the conclusion that the delay was such that the Minister could justifiably enlarge an