JUDGEMENT

Gopal Sri Ram JCA:

The appellant in this case was a clerk in the Postal Department. As long ago as 18 October 1984, disciplinary proceedings were commenced against him in respect of misconduct allegedly committed by him between January and May 1977. At the conclusion of those proceedings the appellant was dismissed from service and the decision to dismiss him was communicated to him by way of a letter dated 9 July 1985. The appellant instituted an action in November 1986 against the instant respondents seeking,inter alia, a declaration that his dismissal was unlawful and of no effect. The action came on for hearing on 12 August 1994. Since there was no dispute about the facts, the learned judge, with the consent of the parties quite correctly dispensed with the calling of witnesses. He then directed that counsel put in written submissions and in a reserved judgment dismissed the appellant's claim. It is against that decision that the present appeal has been brought.

Before us the only point relied on by learned counsel is that his client was deprived of procedural fairness because of the seven year delay on the part of the respondents in bringing the charges against the appellant. The learned judge resolved that issue against the appellant. This is what he said:

In the written submission the Plaintiff contended that there has been an inordinate delay in the decision making process. The Plaintiff in his written submission said, 'The issue which is fundamental to the Plaintiff's case is in relation to the stale charges and the delay of about seven years for the PSC to have delivered its decision.'

With respect I can find nowhere in Chapter 'D' 1980 which requires a disciplinary action to be taken within a specified time. The question of delay does not arise. It is not the function of the Court to supplement the legislation even if the legislative provision is not as full and complete as the Court might think appropriate. (See Ghazi bin Mohd. Sawi v. Mohd. Haniff bin Omar, Ketua Polis Negara [1994] 2 CLJ 333; [1994] 2 MLJ 114).

With respect, I am unable to agree with the learned judge. In my judgment, the fact that the General Orders Cap 'D' does not prescribe a time limit does not mean that a disciplinary hearing in respect of charges of misconduct brought no matter how long after the event may be upheld as being procedurally fair. It all depends on the facts of each case. In particular it depends on a number of factors including, the nature of the charge, the length of the delay, the reasons for the delay the opportunity which the employee had to evidentially meet the accusation levelled at him. In the absence of any reasonable explanation, the longer the delay, the more difficult it would be for the disciplining body to justify the proceedings against the employee. Further, long delay may, when coupled with some other circumstances, amount to strong evidence of condonation on the part of the employer of the employee's misconduct. See,Azman bin Abdullah v. Ketua Polis Negara [1997] 1 CLJ 257; [1997] 1 MLJ 263. Further, inMcCalla v. Dsiciplinary Committee of the General Legal Council [1999] 1 LRC 195 the Board of the Privy Council unanimously upheld the common law power in a court to stay proceedings which had been delayed in their institution thereby occasioning substantial prejudice to the accused person. Lord Hutton who delivered the advice of the majority said:

Their Lordships are of the opinion that the Supreme Court and the Court of Appeal were right to hold that there is power under the common law to stay proceedings where there has been such delay in bringing a charge or complaint before a court or tribunal that a hearing of the matter would be likely to result in substantial prejudice to the person against whom the charge or complaint is brought. InBell v. Director of Public Prosecutions [1985] AC 937, [1985] 2 All ER 585 at p 950C of the former report Lord Templeman stated:

Their Lordships do not in any event