JUDGMENTBY: WAN ADNAN J

This is an application for an order of certiorari to quash the award of the Industrial Court No 116/92 dated 26 May 1992.

The claimant was employed by the company as a mechanic with a monthly salary of RM600. By a letter dated 31 March 1990, the company terminated his service without notice, that is, to take effect immediately. It was the contention of the claimant that the company had violated s 14(1) of the Employment Act 1955 (the Act) in that no enquiry was held before dismissal.

Therefore the dismissal was without just cause or excuse. Section 14(1) of the Act provides as follows:

An employer may, on the grounds of misconduct inconsistent with the

fulfilment of the express or implied conditions of his service, after

due inquiry--

(a) dismiss without notice the employee;

(b) downgrade the employee; or

(c) impose any other lesser punishment as he deems just and fit.

(Emphasis added.)

The learned chairman of the Industrial Court held that the claimant being an employee within the meaning of the Act could only be dismissed after due enquiry. An enquiry is a must before he could be dismissed. The learned chairman also held that the failure to hold an enquiry under s 14(1) could not be saved by the principle in Workmen of the Motipur Sugar Factory Pte Ltd v The Motipur Sugar Factory Pte Lt dl which was adopted by the Supreme Court in Dreamland Corp (M) Sdn Bhd v Choong Chin Sooi & Ano r and which states as follows:

When an employer has failed to make an inquiry before dismissing or

discharging a workman it is open to him to justify his action before

the tribunal by leading all relevant evidence before it. The entire

matter would be open before the tribunal. It will have jurisdiction not

only to go into the limited questions open to a tribunal where domestic

inquiry has been properly held, but also to satisfy itself on the facts

adduced before it by the employer whether the dismissal or discharge

was justified. The important effect of omission to hold an enquiry is

merely that the tribunal would not have to consider only whether there

was a prima facie case but would decide for itself on the evidence

adduced whether the charges have really been made out.

Before me the learned counsel for the company contended that there was no necessity to hold an enquiry. His authority is s 13(2) of the Act which provides as follows:

Either party to a contract of service may terminate such contract of

service without notice in the event of any wilful breach by the other

party of a condition of the contract of service.

He further contended that the Industrial Court ought to have applied the principle in Dreamland s case2 to decide for itself on the evidence adduced by the company whether the charges against the claimant had really been made out. He therefore contended that there was an error going into jurisdiction.

Under [s 2 of] the Act:

employee means any person or class of persons --

(a) included in any category in the First Schedule to the extent

specified therein; or

(b) in respect of whom the Minister makes an order under subsection

(3) or section 2A;

Category 1 under the First Schedule states as follows:

Any person, irrespective of his occupation, who has entered into a

contract of service with an employer under which such persons wages do

not exceed one thousand two hundred and fifty ringgit a month.

The claimant employed as a mechanic with a monthly salary of RM600 is therefore an employee under the Act. The provisions of the Act apply to him. His employer is bound by the provisions of the Act.

In Dreamland s case2 the claimant was employed as a project manager with a monthly salary of RM2,400. He was therefore not an employee within the meaning of the Act. The provisions of the Act had no application. Hence there was no statu