JUDGMENT

Abdul Malek Ahmad FCJ:

Leave had been granted by this court on 10 July 2000 on the following questions:

1.Whether a show cause letter issued by a Public Service Disciplinary Authority which directed a member of a public service's attention to the possibility of punishment of dismissal or reduction in rank sufficiently complied with the provisions of art. 135(2) of the Federal Constitutionthat no member of a public service shall be dismissed or reduced in rank without being given a reasonable opportunity of being heard?; and

2.Does art. 135(2) of the Federal Constitutionrequire the relevant disciplinary authority to afford the public officer an oral hearing?

The respondent was employed as a hospital attendant at the Penang General Hospital. No less than nineteen letters pertaining to the matter dated between 30 August 1990 to 25 July 1991 have been included in the appeal record but, for effect, we will refer only to the relevant ones. The first appellant issued him a show cause letter dated 31 January 1991 to institute disciplinary proceedings for dismissal or reduction in rank on the grounds that the respondent's urine sample taken on 5 May 1990 was positive of morphine in breach of para. (2)(d) of General Order 4 of the Public Officers (Conduct and Discipline) (Chapter "D") General Orders 1980 (hereinafter "the General Order"). As stated therein, an officer shall not conduct himself in such manner as to bring the public service into disrepute or to bring discredit thereto. Apparently, his drug addiction would bring disrepute to the public services. This letter was received on 5 February 1991.

On 7 February 1991, the respondent made representations to the first appellant. He denied that he was a drug addict and argued that there was a possibility that the relevant urine sample was not his but might belong to some other person. He pleaded to be given another opportunity to have his urine tested as he had no intention to taint his good service record. Further, he had never been subjected to any form of disciplinary action in his 27 years' service with the second appellant.

On 20 March 1991, the first appellant forwarded to the respondent a letter informing him that he had been dismissed under para. (i) of General Order 36 of the General Orders. The respondent was also informed that he had the right to appeal through his Head of Department to the Disciplinary Appeal Board.

This the respondent did by letter dated 26 March 1991 where he repeated what he had said in his letter dated 7 February 1991. He added that on 7 May 1990 (the correct date should have been 5 May 1990), he had been given an empty bottle with no label which could easily have subsequently been mixed up with someone else's urine sample and about that time he was taking "Linctus Codeine", a cough mixture, to cure his coughing. Further, the result was only made known to him about four and a half months later.

His appeal was dismissed by letter dated 4 July 1991 which was made known to him by letter dated 25 July 1991. On 20 November 1991, the respondent instituted proceedings against the appellants for wrongful dismissal. On 30 May 1996, the High Court decided in his favour.

On 3 May 1999, the Court of Appeal held, in dismissing the appeal, that the respondent had been deprived of his right to make representations on punishment. Secondly, there was failure of procedural fairness as the respondent was deprived of an oral hearing.

It is pertinent at this point to refer to the relevant passages in two of the three separate judgments of the Court of Appeal. The concluding paragraphs of the judgment by Siti Norma Yaakob, JCA (as she then was) are reproduced below:

From the language of the show cause letter and in the light of the alternative punishments that might be imposed on the respondent, it was my considered opinion that the respondent should have been given the opportunity to plead in mitigation before any punishment was meted against him. This reasoning I