JUDGMENT

Edgar Joseph Jr. FCJ:

In this judgment it would be more convenient if we referred to the appellant and the respondent as 'the Employee' and 'the Employer', respectively.

The essential facts may be shortly stated and are these:

The Employee had been employed by the Employer as a wort cooler operator at its brewery situated at Jalan Foss, Kuala Lumpur.

By a letter dated 21 October 1988, the Employee had been suspended from duties for a period of two weeks pending investigations into an allegation that he had on 15 October 1988 at about 3.30a.m. at the Employer's brewery compound committed the offence of attempted theft of 30 bottles of Fraser & Neave cordials and one bottle of Lion Stout. A police report was lodged at 6.40 a.m. the same day by the Employer's head guard who alleged that he was an eye witness to the offences charged. Some three weeks later, the Employee had been given formal notice by letter dated 31 October 1988, signed by the Employer's personnel officer Lim Fah, that it had decided to hold a domestic enquiry to consider four charges against him, particulars whereof were set out in a charge sheet annexed thereto, and which were in the following terms:

1. That on 15 October 1988 at about 4.07a.m. you have attempted to steal 30 bottles of F & N cordials and one bottle of Lion Stout pint out of Brewery compound by means of your car WAQ 213.

2. That on 15 October 1988 at about 4.07a.m. you have resisted security check by the guard by driving your car WAQ 213 away from the barrier gate, thus, obstructing the security guards from doing their duty.

3. That on 15 October 1988 at about 4.08a.m. you have wilfully driven your car WAQ 213 into area 'prohibited for private motor vehicles after 7p.m., i.e. from Water Tank to conwaste Bins area.

4. That on 15 October 1988, you were missing from workplace from about 4.17a.m. to 4.43a.m. without the permission of your superior.

The letter dated 31 October 1988 had warned the Employee that he was required to be present at the domestic enquiry which was to be held on 4 November 1988 at 9a.m. at the personnel officer's office and that he should bring along with him such documentary evidence and witnesses who might assist him in his defence, and that he could be assisted by a union representative.

On the appointed date, the hearing of the domestic enquiry commenced, ending three days later. Charged with him was his colleague one Appalasamy. The Employee did attend the domestic enquiry and was assisted by a union representative, Jaffar. He pleaded "not guilty" to all the charges.

The Panel of Enquiry ('the Panel') comprised four senior executives of the Employer. The prosecuting officer was the personnel officer Lim Fah. A number of witnesses were called by the prosecuting officer including the Employer's head guard Saadon bin Hj. Ahmad, security guard Ab. Ghany bin Harun and foreman Jalil bin Tahir, who said they were at the scene of the attempted theft at the material time, in the course of duty. The testimony of these witnesses seriously incriminated the employee. Each of them was crossexamined by the Employee. There was thus ocular proof that the Employee had a case to answer on each of the charges aforesaid.

Upon his defence being called, the Employee gave his version of the facts. He alleged that the case against him had been framed because of "unhappy incidents" involving himself on the one hand and the head guard Saadon and the security guard Ab. Ghany, on the other. He did not however suggest why the foreman Jalil should falsely implicate him.

In the event, the Panel had found the Employee guilty of all charges.

According to the applicable domestic procedure, the Panel was the decision making body only insofar as the issue of liability was concerned.

So far as the issue of penalties was concerned, under the applicable domestic procedure, the Panel had only powers to make recommendations to the Brewery Manager Mr. J.H. Mameren who alone had the power to