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Judicial review proceedings cannot be used as a cloak for what is in essence an appeal.

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6 January 2023

“Not the function of the Court to act as an appellate court or to use the judicial review proceedings as a cloak for, or to disguise, what is in essence an appeal”

P. Thavaselvi, together with Sandeep Singh Sidhu from Zul Rafique & Partners’ Employment and Industrial Relations Practice Group successfully represented Public Bank Berhad (“the Bank”) at the Court of Appeal in respect of an appeal filed by an ex-employee of the Bank (“the Appellant”) against the decision of the High Court of Malaya to quash the entire decision of the Industrial Court in Award No. 3113 of 2019 via the Appellant’s Judicial Review application.

THE BRIEF FACTS OF THE CASE ARE AS FOLLOWS:

The Appellant was first employed as Messenger/Driver of the Bank in 1988. The Appellant was then promoted in 1994 to Clerk/Typist/Cashier and was assigned with duties such as Savings Accounts, Current Accounts and Clearing duties. Towards the end of year 2003, the Appellant was appointed as Clearing Clerk and assigned to perform clearing functions on full time basis, upon his transfer to the Clearing/ATM Department.

By a letter dated 3.3.2004, the Appellant was required to furnish his written explanation to account for 2 outstation 3rd party cheques that were posted into Messrs A. Tanasekaran’s (“the Law Firm”) Clients’ Account on 27.1.2004, without verification by any Frontline Operations Officers of the Bank, that were kept in a drawer next to a bundle of verified cheques, and to show cause why disciplinary action should not be taken against him.

By a letter dated 8.3.2004, the Appellant alleged that the 2 outstation 3rd party cheques were “inadvertently posted into a lawyer’s clients’ account as per the pay-in slips raised by the customer”, he regretted the incidence of oversight and he assured that he will exercise greater care in future. However, the Bank’s further investigations, revealed the following facts relating to the Appellant:
 
1) prior to 27.1.2004, the Appellant had in fact posted a total of 5 outstation 3rd party cheques into the Law Firm’s Clients’ Account on 13.12.2003 and 7.1.2004, respectively; and

2) after 27.1.2004, the Appellant posted 1 outstation 3rd party cheque for RM616 into the Law Firm’s Clients’ Account on 7.2.2004, which was in fact 1 of the 2 outstation 3rd party cheques the Appellant reversed on 27.1.2004.

The Bank conducted a Domestic Inquiry against the Appellant on 6.4.2004, and 7.4.2004, wherein he pleaded not guilty to the 3 charges of misconduct preferred against him. The charges relate to 7 outstation 3rd party cheques, which were all posted by the Appellant and deposited/credited into a 3rd party namely, the Law Firm’s Clients’ Account on 8 occasions. The said 7 outstation 3rd party cheques are all insurance cheques, that were strictly prohibited by BMM Branch;  and fell within the prohibition set out in Section 81A(1) of the Bills of Exchange Act 1949,  as stated in the Bank’s Circular dated 24.12.2002.

On 22.4.2004, the Bank informed the Appellant that the Domestic Inquiry Panel had unanimously found him guilty of the charges of misconduct preferred against him and that he was dismissed from service with effect from 25.4.2004 in view of the seriousness of his misconduct. Consequently, the Appellant’s representations under Section 20(1) of the Industrial Relations Act 1967 (“IRA 1967”) were referred to the Industrial Court and registered as Industrial Court Case No. 18/4-103/14.

Industrial Court

After a full trial, the Industrial Court, in the Award dated 3.12.2019, decided that the Bank had successfully proven their case on the balance of probabilities that (a) the Appellant committed all charges framed against him; and (b) the Appellant’s dismissal was with just cause or excuse.  Accordingly, the Appellant’s claim was dismissed.

The Appellant then filed an application for Judicial Review in the High Court of Malaya to quash the entire decision of the Industrial Court in Award No. 3113 of 2019.

High Court of Malaya in Judicial Review Application No: PA-25-15-03/2020

On 2.12.2021, the High Court dismissed the Appellant’s Judicial Review application, with costs.  Dissatisfied with this decision, the Appellant filed an appeal to the Court of Appeal, inter alia, on the following grounds:
 
1) that the learned JC erred when he decided that the Industrial Court appreciated that the burden of proof was on the Bank;

2) that the learned JC erred when he decided that the Industrial Court correctly arrived at the findings of fact that the Bank had successfully proven its case, on the balance of probabilities and that the Appellant did in fact commit all the charges framed against him; and

3) that the learned JC erred when he decided that the Industrial Court appreciated the evidence of the witnesses as a whole.

Court of Appeal

On 6.12.2022, the Court of Appeal with the quorum YA Abdul Karim Bin Abdul Jalil, YA Abu Bakar Bin Jais, and YA Ahmad Zaidi Bin Ibrahim, unanimously dismissed the Appellant’s appeal without costs and upheld the decision of the Learned High Court Judge which was handed down on 2.12.2021.

Key Takeaway
 
  • The grounds of challenge canvassed in the Appellant’s Judicial Review application were in substance to impugn the findings of fact and conclusions made by the Industrial Court in the Award based on the credibility of witnesses. It is settled law that it is not the function of the Court to act as an appellate court or to use the judicial review proceedings as a cloak for, or to disguise, what is in essence an appeal.

For more insight into this area of law, please contact our Partner in our Employment & Industrial Relations Practice Group:
P Jayasingam
Wong Keat Ching
Thavaselvi Pararajasingam
Teoh Alvare

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