JUDGMENT

Steve Shim CJ (Sabah & Sarawak):

Before I proceed to read the judgment, let me say that on 7 August 2002, the late Mohtar Abdullah FCJ was due to deliver the judgment on this case but unfortunately, the day before, he was suddenly struck down with a stroke. It was then found necessary to await his recovery so that he could proceed to deliver the judgment. Sadly, he passed away. Hence the delay in the delivery of this judgment. It is therefore done pursuant to s. 78 of the Courts of Judicature Act 1964.

On 3 January 2000, the appellant was granted leave to appeal to the Federal Court on the following question:

Whether the review jurisdiction of the review court under Order 53 of the Rules of High Court, 1980, includes a right of the review court to decide for itself the correctness of the decision on the merits.

The factual background can be briefly stated. The respondent obtained his masters' degree in geology in 1977. He commenced work with the appellant on 16 December 1977 as a Trainee Geologist. He was later confirmed as a Geologist on 16 December 1978. Between 1979 and 1983 he served in various positions, finally as Section Head of Geological Projects which was a grade 5 post. In 1983, he was offered a scholarship to do his Ph.D at Oxford University, United Kingdom. Upon completion of this course in September 1986, the respondent returned to Malaysia and resumed work with the appellant and was emplaced in the Laboratory Services Department. On reporting to the Manager of Laboratory Services Department, the respondent claimed that he was not given any position or job description. As he was unhappy with this state of affairs, he made inquiries with his superior officers. By a letter dated 23 September 1986, the Manager of Laboratory Services Department Dr. Ramlee' Karim conveyed to him the following information:

1. With the present set-up of the Laboratory Services Department there is no position which suits your academic qualifications and working experience.

2. With the formation of PRI there could possibly be a suitable slot for you.

3. In the interim period before the establishment of the PRI you are to report direct to the Laboratory Services Department manager with a function of assisting him to set up the upstream aspect of PRI and to generally assist in upstream matters.

PRI refers to the Petronas Research Institute. After the formation of PRI in mid-1987, the respondent was informed by the General Manager, Human Resources Division that his position in PRI was to be a Geologist. The respondent considered this to be a demotion in rank as it was the same position he held in 1978 from which position he had on severar occasions been promoted. So on 30 November 1988 he wrote a letter of complaint to the Director of PRI seeking a transfer to another appropriate job taking into consideration his qualifications and experience with a copy to the Vice-President, Human Resources and Manpower Division. There was no response from them. On 12 December 1988, the respondent sent a reminder to the director of PRI, again copied to the Vice-President. The reminder was short and terse:

Request for Transfer -

Dr. Nik Ramli Nik Hassan

With reference to my memo dated 30th November 1988 on the above, I would appreciate if action on the memo could be carried out on or before the 16th of December 1988 following which I may have to consider other options.

This reminder sounded more like an ultimatum. Possibly because of this, it fell on deaf ears. The respondent was however persistent. On 20 December 1988, he wrote a final letter to the same director copied to the same Vice-President in the following terms:

I refer to my letter of 12th December 1988 on the question of employment with the Company to which I have yet to get a reply. I have been patient for almost two years while I was under 'cold storage'.

It has now become clear to me that the Company has evinced an intention not to be bound by the terms of my employment contract and t