FIRUZ ALZARHARI BIN ABU BAKAR v 1. ) Pengerusi Lembaga Kumpulan Sokongan (No.1) Agensi Penguatkuasaan Maritim Malaysia 2. ) kementerian dalam negeri, malaysia 3. ) Jabatan Perkhidmatan Awam Malaysia 4. ) Kerajaan Malaysia

Case Significance

Confirms that a disciplinary dismissal may be quashed for taking into account an irrelevant consideration — here, a mistaken premise that the officer had trafficked drugs when he had only been convicted of possession and self-administration — even where the right to be heard is validly excluded under the proviso to Article 132 of the Federal Constitution.

This High Court decision in Shah Alam concerns an application for judicial review by a former Senior Petty Officer of the Malaysian Maritime Enforcement Agency who sought an order of certiorari to quash the decision dismissing him from the public service. The applicant had earlier pleaded guilty in the Magistrates' Court to possession of a dangerous drug under section 6 of the Dangerous Drugs Act 1952 (14.62 grams of cannabis) and to self-administering a dangerous drug under section 15(1)(a) (methamphetamine), and had been bound over on a bond of good behaviour under section 173A of the Criminal Procedure Code. The disciplinary authority subsequently terminated his service. He challenged the dismissal on three broad grounds: that he had been denied the right to be heard, that the authority had acted in bad faith, and that it had taken irrelevant considerations into account. On the first two grounds the court found against him. It held that the proviso to Article 132 of the Federal Constitution removes the right to be heard where there has been a finding of guilt, as there had been here, and that no bad faith had been proved. The application nonetheless succeeded on the third ground. The disciplinary authority's own affidavit had asserted that the applicant was involved in aktiviti pengedaran dadah berbahaya (dangerous-drug trafficking activity) as a basis for the punishment of buang kerja (dismissal from service), whereas the charges he had actually faced were only for possession and self-administration — there was no suggestion of trafficking. Treating that as an irrelevant consideration that had tainted the decision, the court allowed the application and quashed the dismissal. The judgment shows that even where a right to be heard is validly excluded, a disciplinary decision can be set aside if it rests on a materially inaccurate premise about the nature of the employee's misconduct.