Judicial Review Proceedings Cannot Be Used As A Cloak For What Is In Essence An Appeal.

• Law Firm: Zul Rafique & Partners
• Subject Matter: Litigation, Mediation & Arbitration, Court Procedure, Trials & Appeals & Compensation
• Author: P. Jayasingam, Wong Keat Ching, Thavaselvi Pararajasingam and Teoh Alvare
• Published date: 09 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...