MURUGAN A/L SUBRAMANIAM v 1. ) PENGERUSI LEMBAGA TATATERTIB KUMPULAN SOKONGAN (NO.1) JABATAN DAN INSTITUSI KEMENTERIAN KESIHATAN MALAYSIA 2. ) LEMBAGA TATATERTIB KUMPULAN SOKONGAN (NO.1) JABATAN DAN INSTITUSI KEMENTERIAN KESIHATAN MALAYSIA 3. ) PENGERUSI LEMBAGA RAYUAN TATATERTIB PERKHIDMATAN AWAM SURUHANJAYA PERKHIDMATAN AWAM 4. ) LEMBAGA RAYUAN TATATERTIB PERKHIDMATAN AWAM SURUHANJAYA PERKHIDMATAN AWAM 5. ) Kerajaan Malaysia

cb-25-1-03-2025 High Court (Mahkamah Tinggi) 7 April 2026 • CB-25-1-03/2025 • 22 min read
8 cases cited (0 SG, 8 foreign)

Catchwords

ADMINISTRATIVE LAW – Judicial review – Certiorari – Mandamus – Dismissal of public servant – Summary dismissal of public health assistant following criminal proceedings – Whether order under s 173A of the Criminal Procedure Code constitutes a conviction or finding of guilt – Whether decision-making process flawed – Whether contemporaneous record supported finding that criminal charge “proven” – Whether decision-makers acted on misdirection of law and fact ADMINISTRATIVE LAW – Natural justice – Right to be heard – Audi alteram partem – Public officer summarily dismissed without hearing – Whether right to be heard under reg 37 of the Public Officers (Conduct and Discipline) Regulations 1993 displaced by proviso to art 135(2)(a) of the Federal Constitution where criminal charge said to be “proven” – Quasi-judicial nature of disciplinary proceedings Facts The Applicant had been in the public service since 2008 and, prior to his dismissal, served as a public health assistant (Pembantu Kesihatan Awam Gred U19) at the Triang Health Office, Bera, Pahang. In or around June 2021 he was charged at the Temerloh Magistrate’s Court under s 292(a) of the Penal Code for possession of obscene material, the material having been posted by another person into a shared WhatsApp group and automatically downloaded onto his phone. On 25.8.2022 the Magistrate’s Court placed the Applicant on a two-year bond of good behaviour, with a surety of RM3,000, under s 173A of the Criminal Procedure Code, without recording any conviction. Following that order, the 1st and 2nd Respondents issued letters dated 24.7.2023 suspending and summarily dismissing the Applicant, taking the position that the criminal proceedings had taken away his constitutional right to be heard. The Applicant appealed to the Public Services Disciplinary Appeal Board (the Third and Fourth Respondents), relying on his clean 15-year disciplinary record, his position as sole breadwinner for four dependents, and his passive receipt of the material. On 7.1.2025 the Appeal Board rejected the appeal and upheld the dismissal. Leave to commence judicial review was granted on 2.7.2025, the Applicant seeking certiorari to quash both decisions, a declaration that the dismissal was null and void, and an order of mandamus for reinstatement, on the grounds of procedural impropriety, breach of natural justice (denial of the right to be heard), and disproportionality. The Respondents contended that, because the Applicant had pleaded guilty and the charge was thereby “proven”, the right to a disciplinary hearing was validly extinguished under the proviso to art 135(2)(a) of the Federal Constitution such that the ordinary process under reg 37 did not apply and that the dismissal was a lawful and proportionate exercise of discretion to safeguard the integrity of the public service. Held, allowing the application with costs of RM2,000: (1) The premise of the Respondents’ decision that the Applicant had been convicted (“disabitkan kesalahan”) was a fundamental misdirection of law and fact. The Magistrate’s order under s 173A of the Criminal Procedure Code recorded no conviction, so there was no basis to treat the charge as a sabitan salah justifying bypass of the right to be heard. (2) A charge is “proven” for the purposes of art 135(2)(a) of the Federal Constitution only upon a judicial finding of guilt after a full criminal trial, it is not “proven” by a plea or the grant of a discretionary bond under s 173A. Tan Tek Seng was distinguishable, the officer there having been convicted after trial, whereas here there was only a binding over. (3) Following Kamsinah Karim [2013] 7 CLJ 127, an officer dealt with under s 173A without a recorded conviction cannot be summarily dismissed without a right to be heard, and any doubt in the order must be read in his favour. (4) The legal foundation for summary dismissal under reg 29 was therefore missing, and the right

Practice Areas

ADMINISTRATIVE LAW

Judges (1)

Kuldeep Kumar a/l Jamna Dass Delivered

Counsel (4)

Pejabat Penasihat Undang-Undang Negeri Pahang Firm Rama-Rozi & Associates Firm Najwa binti Hashim Counsel Respondent Nurul Syuhada Abdullah Counsel Applicant

Parties (6)

Kerajaan Malaysia Respondent LEMBAGA RAYUAN TATATERTIB PERKHIDMATAN AWAM SURUHANJAYA PERKHIDMATAN AWAM Respondent LEMBAGA TATATERTIB KUMPULAN SOKONGAN (NO.1) JABATAN DAN INSTITUSI KEMENTERIAN KESIHATAN MALAYSIA Respondent PENGERUSI LEMBAGA RAYUAN TATATERTIB PERKHIDMATAN AWAM SURUHANJAYA PERKHIDMATAN AWAM Respondent PENGERUSI LEMBAGA TATATERTIB KUMPULAN SOKONGAN (NO.1) JABATAN DAN INSTITUSI KEMENTERIAN KESIHATAN MALAYSIA Respondent Murugan a/l Subramaniam Applicant

Statutes Cited

Criminal Procedure Code (Cap 593)
s 173A
Dangerous Drugs Act 1952 (Cap 234)
Federal Constitution
Penal Code (Cap 574)
s 292(a)

Cases Cited (8)

UK (2)
[1985] AC 374 [1986] AC 240
MY (6)
[1996] 2 CLJ 771 [1997] 1 CLJ 147 [2013] 7 CLJ 127 [2015] 1 CLJ 295 [2019] 4 CLJ 561 [2020] 1 CLJ 1

Judgment

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Source: eJudgment (cb-25-1-03-2025)