JUDGMENT

Gopal Sri Ram JCA:

This is an appeal against the judgment of Azmel J in refusing to issue an order of certiorari to quash the Award of the Industrial Court which was handed down on 23 December 1993.

The facts relevant to the appeal are as follows.

The respondent was initially employed as a fitter by the appellant in August 1961. He was later appointed as salesman. In a retrenchment exercise in September 1977, the respondent was discharged. In January 1978, the respondent was re-employed as a bill-collector. On 24 October 1989, the appellant wrote to the respondent, informing him that he was being retrenched as bill-collector and offering retrenchment benefits of about RM27,000. The respondent did not accept the offer. He claimed that the retrenchment was a dismissal disguised as a redundancy exercise.

He, therefore, took advantage of s. 20(1) of the Industrial Relations Act and lodged a complaint with the Director General of Industrial Relations. In due course, after the conciliation mechanism provided by s. 20 had been exhausted, the respondent's representations were referred by the Minister of Human Resources to the Industrial Court. The axis of the dispute between parties in that Court was whether the respondent had been, as alleged by him, dismissed without just cause or excuse or whether his discharge was within the exercise of the bona fide managerial power vested in the appellant as employer.

The Industrial Court, after hearing evidence of several witnesses came to the conclusion that the respondent was victimised for his trade-union activities. The Chairman of the Industrial Court was much impressed by evidence of circumstances which went to show that the appellant was attempting to find all sorts of reasons to evict the respondent from employment. I use the expression "evict" because the decision of this Court in Hong Leong Equipment Sdn. Bhd. v. Liew Fook Chuan & Other Appeals [1997] 1 CLJ 665 (where leave to appeal was refused by the Federal Court) and that of the Federal Court in R. Rama Chandran v. Industrial Court of Malaysia & Anor. [1997] 1 CLJ 147 which recognise that an employee's right to work and earn a living, apart from being a fundamental right, is also akin to property.

Before us, Sivabalah, with his usual meticulous care, has taken us through several passages in the testimony of the witnesses who gave evidence in the Industrial Court. He has attacked the learned Judge's refusal to issue certiorari on a number of grounds. I find it, however, unnecessary to delve into each of them. Suffice to say that the complaints made by Sivabalah amount to a criticism of the findings of fact made by the Industrial Court based upon the credibility of the witnesses it saw and heard.

It is well-settled that a Court cannot utilise certiorari proceedings as a cloak to entertain what, in truth, is an appeal against findings of fact. If authority is needed for that proposition, it may be found in the decision of the Indian Supreme Court in Basappa v. Nagappa AIR [1954] SC 440 and in Dharangadhra Chemical Works Ltd. v. State of Saurashtra & Others AIR [1957] SC 264.

In response to this proposition, Sivabalah refers us to the decision of this Court in Amanah Butler (M) Sdn. Bhd. v. Yike Chee Wah [1997] 2 CLJ 79 and the decision of the Federal Court in Rama Chandran (supra) . I am conscious of the inroad made by these decisions in the field of administrative law. The principle they establish is that when a decision of an inferior tribunal is attacked in public law proceedings for unreasonableness, the inquiry extends to the merits of the decision itself.

The question at the end of the day is whether a reasonable tribunal similarly circumstanced would have come to a like decision on the facts before it. However widely understood the proposition in Rama Chandran and Amanah Butler (supra) may be, it does not include the review, in certiorari proceedings, of findings of fact based on the credibility of witnesses.