Hornbill Unleashed

June 6, 2017

Court: Sacked civil servants can file judicial review or writ

Filed under: Politics — Hornbill Unleashed @ 8:01 AM

Civil-servants-sackedCivil servants who are sacked for misconduct have the option to challenge their dismissal by writ action instead of filing a judicial review.

However, the Court of Appeal, which reinstated a suit filed by three immigration officers, said the mode of action would depend on the facts and circumstances of each case.

A civil servant who files a judicial review must challenge a public authority within 90 days after a decision of guilt is conveyed.

In the case of writ action, the public servant has up to three years to file his/her suit.

A three-man Court of Appeal bench, chaired by Tengku Maimun Tuan Mat, said based on the facts and circumstances of the present appeal, the panel found the mode used by the plaintiffs (officers) via the writ action was entirely appropriate.

“It cannot, therefore, amount to an abuse of the process of the court which renders the plaintiffs’ claim liable to be struck out nor could it be scandalous, frivolous or vexatious,” said Tengku Maimun, who delivered the decision.

The bench has remitted the matter to the High Court for a retrial.

Tengku Maimun said the bench was guided by a 2010 Federal Court ruling in the case of Ahmad Jefri Mohd Jahri @ Mohd Johari v Pengarah Kebudayaan &
Kesenian Johor & Ors.

That judgment stated that if a claim for infringement was based solely on substantive principles of public law, then the appropriate mode for challenge is by way of judicial review.

If, however, it is a mixture of public and private law, then the court must ascertain which of the two is more predominant.

If it has a substantial public law element, then the procedure is by way of judicial review, otherwise, it may be set aside on grounds that it abuses the court’s process.

But if the matter is under private law though concerning a public authority, the mode to commence such action under judicial review is not suitable.

Mohammed Ariff Abdul Majid, Mohd Amirullah Abu Bakar, and Mohd Helmi Ramli were dismissed after disciplinary proceedings.

By a writ of summons and statement of claim, they asked for a declaration that their dismissal was null and void and also sought damages.

The High Court struck out their suit on the grounds that they should have filed a judicial review as they were challenging the decision of a public authority.

Tengku Maimun, in the 12-page judgment, which is now posted on the judicial website, said the High Court judge failed to ascertain whether the plaintiffs could file their action by way of judicial review.

She said the direct defendants in this case were the Immigration Department director-general and Public Service Commission, which are public authorities and acted under specific laws.

Tengku Maimun said, unfortunately, the defendants did not file a defence for the court to verify the plaintiffs’ allegations as they (defendants) had applied to strike out the suit.

“In our view, the allegations raised in the statement of claim are factual
matters which merit investigation in a full trial,” she said.

The three said they were not accorded a fair hearing before a tribunal decided on their dismissal.

Source : The Malay Mail Online by V Anbalagan



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