JUDGMENT

Faiza Tamby Chik J:

To fully appreciate the background of this case, it is necessary for me to set out the background. The Penang Port Commission (PPC) is a public authority created by the PPC Act 1995 (Act 140) (Revised-1974). The Commission consists of the Chairman, the general manager and between five to nine Commission Members (s. 5). The Commission is vested with powers, inter alia,to appoint and employ such officers and servants (s. 24 and 18) and make such regulation of service (s. 15). As the PPC at the material time employed more than 3,000 workers, the burden of attending to the employment of all officers and servants of the PPC was heavy on the Commission. In practice the Commission only directly attends to the employment and disciplinary matters of Division 1 and 2 officers and delegates the employment and disciplinary matters of Division 3 and 4 workers to the management. The management comprises of the general manager, the principal executive officer of the Commission (s. 17), Heads of Department and Personal Manager. In exercising the powers delegated by the commission to the management over the employee workers in division 3 and 4 it was a convention in the PPC that the Head of Department selects the workers and the Personnel Manager attends to the documentation. The point to be noted here is that Division 1 and 2 appointments and/or promotions and disciplinary matters are decided by the commission whereas the appointments and/or promotions and disciplinary matters in relation to Division 3 and 4 are undertaken by the management under delegated powers.

Pursuant to the above said PPC arrangement the plaintiff was employed as a mobile clerk, a Division 3 post, in the traffic department with effect from 1 May 1975. He was interviewed by the traffic manager and the appointment letter came from the personnel manager. In appointing the plaintiff, the management was exercising the powers under a delegation from the commission. On being appointed as a mobile clerk there came into being a contract of service between the plaintiff and the PPC. It is trite law in Malaysia that the contract is governed by the Malaysian Contracts Act 1950. Since PPC is a statutory body and employs its employees under statutory power the contract of employment entered between PPC and its employees was of a special kind and which acquired a special status. Thereafter the employee's rights and obligations are no longer determined by consent of both parties but by the statute or administrative rules made by the statutory body. This law is the same for government employees, see Government of Malaysia v. Rosalind Oh Lee Pek Inn [1973] 1 MLJ 222. Further this statutorily created posts are permanent and pensionable after the probationary period of three years. The Employees' Provident Fund Act 1951 revised 1982, does not apply to such employees. Further, under this contract, the PPC employees and his family were entitled to free medical treatment and other benefits accorded to government servants, like car loan and housing loan at a subsidised interest rate. The plaintiff was confirmed as a mobile clerk on 1 May 1978 and thereby became a permanent and pensionable employee but pension was only to commence after ten years of service as per the PPC regulations. It is the submission of the plaintiff that on joining the PPC, he wanted to enhance his career and worked towards acquiring a professional qualification in transport and which was relevant to his employers, the PPC. This relevant qualification was to become a Corporate Member of the Chartered Institute of Transport, London (CIT). The CIT examinations comprising of four part examination. A pass in Part I & II examinations led to the Graduateship of the CIT and which qualification is recognised as a diploma. A pass in Part III & IV led to the final examination and enabling the member to become a corporate member of the CIT and which membership is recognised as a professional qualificatio