JUDGMENTBY: ABDUL KADIR SULAIMAN J

ABDUL KADIR SULAIMAN J: Upon a reference by the Minister of the representations of the applicant under s 20 of the Industrial Relations Act 1967 (the Act), the second respondent, the Industrial Court, heard the dispute and subsequently handed down award No 29/96 in favour of the applicant. At p 10 of the award the learned chairman said:

It is an admitted fact that the claimant (the applicant) submitted her

claim late and the hearing could only be completed at the beginning of

January 1996 and because of this and bearing in mind equity and good

conscience, a sum of RM10,500 would be considered fair and just to be

compensated to the claimant by the company as the court finds that her

termination was without just cause or excuse and she was unemployed

from April 1993 to October 1993, a total of approximately seven months.

All other claims by the claimant, if any, are hereby dismissed

(Emphasis added.)

By this application, the applicant applies to this court for an order of certiorari to quash the said award and also for an order of mandamus to direct the second respondent to make the award of back wages to the applicant to be calculated from the date of her dismissal to the last day of the hearing before the second respondent. The effect of the two prayers construed together in the light of the passage quoted above in relation to the award showed that the applicant was not satisfied with the award which did not make provisions for back wages due to her as a consequence of the dismissal being held to be without any just cause and excuse. This is supported by relief (i) and (ii) contained in the statement made pursuant to O 53 r 1(2) of the Rules of the High Court 1980 filed herein. The applicant was employed by the first respondent as a draughtswoman cum estimator on 4 January 1993 and was dismissed from her employment on 15 March 1993, after a period of two months and 11 days. The hearing before the second respondent on a dispute over her dismissal commenced only on 22 September 1995 and was completed on 6 January 1996. The award was handed down only on 23 January 1996. At the time of the dismissal, the applicant was drawing a monthly salary of RM1,500 per month.

At the outset, it must be stressed that this application of the applicant is not by way of an appeal against the decision of the second respondent but for a remedy under public law of judicial review. The applicant will succeed in this application only if she can show that, in the making of the said award, the second respondent has committed error of law within what is commonly known as the Anisminic or the Wednesbury principle.

It is clear from the above-quoted passage in the award of the learned chairman of the Industrial Court that having found that the applicant was dismissed by the first respondent without just cause and excuse, he did not make any order of reinstatement which is the primary remedy in respect of such a representation. Instead, he awarded compensation in lieu of reinstatement in the sum of RM10,500 which is within his discretion to make as so held in the Federal Court case of Dr A Dutt v Assunta Hospital [1981] 1 MLJ 304. The question of the amount of compensation in lieu to be awarded is of course very much a matter of the discretion which the Industrial Court is fully empowered to determine under s 30 of the Act: see Hotel Jaya Puri Bhd v National Union of Hotel Bar & Restaurant Workers & Anor [1980] 1 MLJ 109. In any event, that is not an issue in the present application of the applicant. What is in issue is the failure of the Industrial Court to make provisions for back wages to be paid to the applicant having held that the applicant was dismissed by the first respondent without just cause or excuse. This is borne by the fact that all other claims by the applicant, which necessarily includes the claim for back wages, were dismissed by the learned chairman.

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